Madras High Court
Srinivasan Medical College And ... vs Union Of India on 29 April, 2022
Author: Anita Sumanth
Bench: Anita Sumanth
WP.Nos.1392 and 9236 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 16.02.2022
Pronounced on : 29.04.2022
CORAM:
THE HON’BLE DR. JUSTICE ANITA SUMANTH
WP.Nos.1392 and 9236 of 2022
and WMP.Nos.1527, 1528, 8996& 1530 of 2022
Srinivasan Medical College and Hospital,
(Affiliated to Dhanalakshmi Srinivasan University)
Represented by its Vice Chairman S.Kathiravan
NH-45, Trichy Chennai Trunk Road,
(Near Samayapuram Toll Plaza)
Samayapuram, Tiruchirapalli-621 112 … Petitioner in both WPs
Vs.
1.Union of India
Represented by its Secretary,
Ministry of Health and Family Welfare,
Room No.156-A, ‘A’ Wing,
Nirman Bhavan, New Delhi 110011
2.Directorate General of Health Services
Represented by its Director General,
Nirman Bhawan, Maula Azad Road,
New Delhi 110011
3.The National Medical Commission,
Represented by its Secretary,
Pocket-14, Section-9, Dwarka Phase-1,
New Delhi-110077 …R1 to R3 in WP.No.1392 of 2022
4.State of Tamil Nadu,
Represented by its Secretary,
Health and Family Welfare Department,
Secretariat, Fort St. George,
https://www.mhc.tn.gov.in/judis
1
WP.Nos.1392 and 9236 of 2022
Chennai-600009 …R4 in WP.No.1392 of 2022 and
…R1 in WP.No.9236 of 2022
5.The Additional Director of Medical Education/
Secretary,Selection Committee,
Directorate of Medical Education,
Chennai-600010 …R5 in WP.No.1392 of 2022 and
…R2 in WP.No.9236 of 2022
6.The University Grants Commission (UGC),
Rep. by its Member Secretary,
Bahadurshah Zafar Marg,
New Delhi-110 002
(R6 suo motu impleaded vide order
dated 10.02.2022) …R6 in WP.No.1392 of 2022
Prayer in WP.No.1392 of 2022: Writ Petition filed under Article 226 of the
Constitution of India praying for issuance of writ of Certiorarified Mandamus
calling for the records of the 5th respondent in its notification dated 03.01.2022
in notification no.003/SCSI(I)/ 2021, quash the same and consequentially direct
the 5th respondent to include the name of the petitioner institution in the
counseling process to be conducted for filling up 35% of the 150 MBBS seats
available in the petitioner institution from the Academic year 2021-22 onwards
and direct the 1st respondent to consider the representation dated 29.10.2021
submitted by the petitioner and instruct the 2nd respondent to include the name
of the petitioner institution in the counselling process to be conducted for
filling up 65% of the 150 MBBS seats available in the petitioner institution
from the Academic year 2021-22 onwards.
Prayer in WP.No.1392 of 2022: Writ Petition filed under Article 226 of the
Constitution of India praying for issuance of writ of Mandamus callingdirecting
the respondents to consider the representation dated 10.04.2022 submitted by
the petitioner and consequently include the name of the petitioner Institution in
the Counselling process and allot candidates to 150 MBBS seats by (i)
following the apportionment of seats followed in private Self-Financing
medical institutions affiliated to Tamil Nadu Dr. MGR Medical University and
(ii) by applying the fee structure fixed by the State Fee Committee for private
self-financing medical institutions in the state for the Academic Year 2021 -22
alone.
https://www.mhc.tn.gov.in/judis
2
WP.Nos.1392 and 9236 of 2022
For Petitioners : Mr.Vijay Narayan
Senior Counsel for
Mr.AbhishekJenasenan
(In both WPs)
For Respondents : Mr.Srinivasa Murthy [R1 and R2]
Senior Panel Counsel
[WP.No.1392 of 2022]
Ms.Shubharanjani Ananth [R3]
[R4 in WP.No.1392 of 2022]
Mr.R.Shunmugasundaram
Advocate General for
Mr.D.Ravichander,
Special Government Pleader
[R1 and R2 in WP.No.9236 of 2022]
[R4 in WP.No.1392 of 2022]
Mr.Amit Anand Tiwari
Additional Advocate General for
Mr.D.Ravichander,[R5]
Special Government Pleader
[WP.No.1392 of 2022]
Mr.P.R.Gopinathan [R6]
WP.No.1392 of 2022]
COMMON ORDER
The State of Tamil Nadu had enacted the Tamil Nadu Private Universities Act, 2019 (for brevity ‘Act/TNPU Act’) as a measure to streamline the conduct of medical education in the State. The avowed objected was not merely to streamline, but to upgrade and bring medical education on par with international standards. The statement of Objects and Reasons reads thus:
https://www.mhc.tn.gov.in/judis 3 WP.Nos.1392 and 9236 of 2022 TAMIL NADU GOVERNMENT EXTRAORDINARY STATEMENT OF OBJECTS AND REASONS The Government have recently enacted Legislations for establishment of two Private Universities in Tamil Nadu to provide Higher Education to the students. In order to supplement the role of Government in providing Higher Education and to provide Global Standard of Education to the students, it is proposed to grant permission to the sponsoring bodies viz. Trust, Societies and not for profit companies for establishment of Private Universities in the State. The Government have decided to bring in a new Legislation for the said purpose.
2. The Bill seeks to give effect to the above decision.
.......
Minister for Higher Education
2. Though the statement of objects and reasons is brief, the preamble to the Act captures the spirit in as much as it states that it was enacted to establish and incorporate, in the State of Tamil Nadu, Green Field Universities (GFU) of unitary nature in private sector by sponsoring bodies viz. Trusts or Societies, being not-for-profit companies to promote, conceptualize and bring about a paradigm shift through development of outstanding leadership, research, knowledge and ideas for education and allied development sectors and also to provide world class Higher Educational Institutions in the State itself.
3. The preamble in a way, says it all, and in my view sets in motion the onset of an era of enhanced vision in the education sector in the State of Tamil Nadu. The seminal issues arising for decision would touch upon the different https://www.mhc.tn.gov.in/judis 4 WP.Nos.1392 and 9236 of 2022 provisions of the Act and the interpretation thereof and I briefly touch upon the provisions to set the context for the discussion to follow.
4. At the outset, I note that the provisions of the Act are not under challenge either by the present writ petitioner or by any other petitioner before the Court, to my knowledge. In fact, the petitioner seeks strict enforcement of the provisions drawing support and strength from the same. Thus, the effort is to understand and apply the provisions of the Act so as to further its spirit and object.
5. Section1 of the Act provides the short title and commencement thereto. Section2 defines the various terms and such definitions, in so far as they are relevant for the purposes of this writ petition, are extracted below: A green field university is defined under Clause-2(m), as under:
(m) "Green field University" means starting of a University afresh without any consideration to any existing educational institutions or anything related to such institutions;
Section-2 (s) defines the term ‘multidisciplinary’ as follows:
(s) "multidisciplinary" means study in the Departments of Humanities and Social Sciences, Science, Engineering and Technology, Architecture, Medical, Dental, Nursing, Pharmacy, Physiotherapy, Allied Health Sciences, Education, Law, Agriculture, Veterinary and other branches of knowledge;
https://www.mhc.tn.gov.in/judis 5 WP.Nos.1392 and 9236 of 2022
6. Thus, a private university (in short ‘PU’) under the Act is envisaged as enabling study in several disciplines, as extracted above, including specifically medical, dental, nursing, pharmacy, physiotherapy and allied health sciences.
7. Regulatory and sponsoring bodies are defined under Section-2 (y) and (ab) as follows:
(y) "Regulatory Body" means and includes a body such as UGC, AICTE, NCTE, MCI, PCI, ICAR, BCI established for maintenance of standards of higher education; ……..
(ab) "sponsoring body" means,-
(i) a trust registered under the Indian Trusts Act, 1882 (Central Act 2 of 1882); or
(ii) a society registered under the Tamil Nadu Societies Registration Act, 1975 (Tamil Nadu Act 27 of 1975); or
(iii) a company registered under section 8 of the Companies Act, 2013 (Central Act 13 of 2013);
8. Section-3, under which a private university is to be established, reads as follows:
3. Establishment of Private University – (1) The Government may permit the establishment of a Private University, by any sponsoring body, by inclusion of the name of the Private University, its location and the details of the sponsoring body in the Schedule.
(2) The Private University shall be a Greenfield University and shall also be a multidisciplinary University. Its location shall be within the State of Tamil Nadu.
https://www.mhc.tn.gov.in/judis 6 WP.Nos.1392 and 9236 of 2022 (3) The Private University shall be a body corporate, shall have perpetual succession and a common seal and shall sue and be sued by the said name.
(4) The Private University shall be of the unitary type and shall not have power to affiliate or recognise any college or institution.
(5) The Private University may establish constituent colleges, regional centres, additional campuses and study centres at such places in the State as it deems fit subject to the norms of UGC and other regulatory bodies.
9. Various pre-conditions, which the sponsoring body is required to fulfill, are as follows:
4. Conditions for establishment of Private University. - For the purpose of establishing a Private University under this Act, the sponsoring body shall fulfill the following conditions, namely:-
(a) possess contiguous land of not less than one hundred acres earmarked for the Private University;
(b) construct on the land referred to in clause (a), buildings and establish infrastructure and install necessary equipments in offices and laboratories as per the standards laid down by the UGC and other regulatory bodies;
(c) appoint teachers for the purposes of teaching as per the standards laid down by the UGC; and
(d) such other conditions as may be required by the Government to be fulfilled before the establishment of the Private University.
As on date, there is no prescription as provided for in (d) above. The pre- conditions are not run-of-the-mill, in that, the entity seeking the status of a PU must possess substantial assets to qualify for such status, such as possession of 100 acres of land among other conditions.
https://www.mhc.tn.gov.in/judis 7 WP.Nos.1392 and 9236 of 2022
10. The petitioner is a medical college and hospital which claims affiliation to the DhanalakshmiSrinivasan University (DSU), which is its sponsoring body. As designed and provided for under Section 2(ab)/Section 5 of the Act, an application had been made to the Government by DSU for establishment of a PU outlining the vision and annexing a project report containing various particulars along with fees of Rs.25,00,000/-.
11. The preliminary expenses that are to be incurred by an aspirant to the status of a PU appear to have been carefully crafted to ensure that all and sundry do not conceive of such a project but only those who are fully committed and have the wherewithal to manage the project, approach the State for such approval.
12. The project report and the contents thereof, are detailed under Section6 and, as required, contain a justification for the establishment of a PU, details of the sponsoring body along with required statutory certifications, its track record in the sphere of education, experience and domain expertise in the proposed disciplines, details of the proposed location of the PU, its objectives, details of academic facilities including faculty and non-teaching staff at its disposal, plan for campus development, including infrastructure and resources development.
https://www.mhc.tn.gov.in/judis 8 WP.Nos.1392 and 9236 of 2022
13. The PU is also required to stipulate its sources of finance and capital expenditure, the proposed nature of programme and study and research innovation, how it projects to mobilize resources along with finance and statements and key operating ratios with a detailed break up of revenue sources, methodology to be followed for admission, appointment of teachers and trainees, facility for extracurricular activities like NCC, NSS and others, proposed plans for academic and research excellence including accreditations, proposed scholarship modes, and a specific commitment to follow the norms of the regulatory bodies.
14. The applications filed are to be placed before an Expert Committee, constituted under Section-7(2)to include:
(i) The Secretary to Government, in-charge of Higher Education Department - Chairman
(ii) Former or serving Vice-Chancellor of the State University
- Member
(iii) The Commissioner of Technical Education - Member Secretary
(iv) The Director of Collegiate Education - Member
(v) The Collector of the District where the Private University is proposed to be established – Member
15. The Committee is to examine the proposal and thereafter make a recommendation to the Government to either accept or reject the proposal. In the present case, the proposal of the University found favour with the expert committee which recommended the same on28.05.2020. Thus, and admittedly, https://www.mhc.tn.gov.in/judis 9 WP.Nos.1392 and 9236 of 2022 the University has complied with the provisions of the Act in regard to all pre- condition requirements and compliances for setting up of the University itself.
16. Section9 provides that the name of the University shall, after grant of approval, be included in the schedule to the Act and such inclusion would be testimony to it having satisfied all conditions under the letter of intent. The Government is vested with the right to either accept or reject the evaluation report of the expert committee and grant approval. In the present case, as such evaluation has found favour with the Government, a Government Order in G.O.(Ms) No.11 dated 20.01.2021 has been issued including the DSU as a PU in the schedule to the TNPA.
17. In line with the settled position that Executive and administrative action is expected to have been taken after full application of mind and in the best interests of the State, one expects that the application has been accepted after thorough scrutiny and finding the same acceptable on all fronts. The petitioner is one of the affiliate colleges of the University. The PU under Section10 may commence to exercise its functions after Notification by Government Order, which in this case has been granted on 20.01.2021.
18. Section11 provides that every PU shall be self-financing and neither shall make a demand nor be entitled to any maintenance, grant-in-aid or other financial assistance from the Government. The proviso, taking note of the https://www.mhc.tn.gov.in/judis 10 WP.Nos.1392 and 9236 of 2022 position that the revenue streams of institution of a PU have to be kept robust, open and viable, do not lay any embargo or prohibition upon it in regard to the sourcing of funds. A PU is thus at liberty to apply and seek research or other academic projects or explore all legitimate resources for financial grant or support.
19. The objects of the PU have been crystallized in Section12 and it would be useful to extract the same below to understand the context under which the TNPU Act has been conceptualized and the scope of operation of a PU and affiliate colleges thereunder:
12. Objects of Private University. - The objects of a Private University shall be to disseminate and advance education, knowledge and skill by providing instructional, research and extension of facilities in such branches of learning as it may deem fit and the Private University shall endeavour to provide to students and teachers the necessary atmosphere and facilities for the promotion of,-
(a) innovations in education leading to restructuring of courses, new methods of teaching, training and learning including on-line learning, blended learning, continuing education and such other modes and integrated and wholesome development of personality;
(b) studies in various disciplines;
(c) inter-disciplinary studies;
(d) national integration, secularism, social equity and engineering of international understanding and ethics;
(e) educational programmes for diplomas, degrees and post-
graduate courses, doctorate degrees and post-doctoral programmes and to maintain high standards of education;
(f) collaboration with national and global institutions, and creation of capabilities for upgrading programmes to the https://www.mhc.tn.gov.in/judis 11 WP.Nos.1392 and 9236 of 2022 global standards, subject to the guidelines of the UGC and other regulatory bodies.
20.The powers of a PU are enumerated in terms of Section13, that provides for instruction in the branches of learning as identified by a PU, the honouring of stalwarts in the field of education and persons of eminence with the decoration of professor Emeritus and various others, as extracted below:
13. Powers of Private University. - Every Private University shall have the following powers, namely:-
(a) to provide for instructions in such branches of learning as the Private University may, from time to time, determine and to make provisions for research and for the advancement and dissemination and application of knowledge and skills;
(b) to impart and promote the study of humanities and social sciences, science, engineering and technology, management, law, medical and allied sciences and any other professional courses through in-campus, off-campus, and satellite centres or by distance educational programmes;
(c) to honour educational stalwarts and persons of academic eminence with the decoration of professor Emeritus;
(d) to grant, subject to such conditions as the Private University may determine, diplomas or certificates to, and confer degrees or other academic distinctions on the basis of examinations, evaluation or any other method of testing on persons, and to withdraw any such diplomas, certificates, degrees or other academic distinctions for good and sufficient cause;
(e) to confer honorary degrees or other distinctions in the manner prescribed;
(f) to provide education and training including correspondence and such other courses, to such persons who are not members of the Private University, as it may determine;
(g) to institute Directorships, Professorships, Associate Professorships, Readerships, Assistant Professorships, Lecturerships and other teaching or academic posts required https://www.mhc.tn.gov.in/judis 12 WP.Nos.1392 and 9236 of 2022 by the Private University and to make appointments for the same;
(h) to create administrative, ministerial and other posts and to make appointments thereto;
(i) to appoint or engage persons of eminence working in any other University or Organisation permanently or for a specified period;
(j) to co-operate, collaborate or associate with any other University or Authority or Institution in India and abroad in such manner and for such purpose as the Private University may determine;
(k) to establish and maintain schools, centres, specialised laboratories or other units for research and instructions as are in the opinion of the Private University, necessary for the furtherance of its objects;
(l) to institute and award fellowships, scholarships, studentships, medals and prizes;
(m) to establish and maintain and supervise residences, hostels within the Private University and promote the health and general welfare activities for students and staff;
(n) to make provisions for research and consultancy, and for that purpose to enter into such arrangements with other institutions or bodies as the Private University may deem necessary;
(o) to declare a centre, an institution, a department, or school, as the case may be, in accordance with the statutes;
(p) to determine standards for admission into the Private University, which may include examination, evaluation or any other method of testing;
(q) to prescribe, demand and receive payment of fees and other charges;
(r) to make such arrangements in respect of the residence, discipline and teaching of women and other disadvantaged students as the Private University may deem fit;
(s) to regulate and enforce discipline amongst the employees and students of the Private University and take such disciplinary measures in this regard as may deem necessary by the Private University;
(t) to make arrangements for promoting the health and general welfare of the employees of the Private University;
https://www.mhc.tn.gov.in/judis 13 WP.Nos.1392 and 9236 of 2022 (u) to receive donations and to acquire, hold, manage and dispose through sale or lease or rent of any property, movable or immovable for the welfare of the Private University;
(v) to borrow without security or by way of hypothecation or mortgage against the property of the Private University with the approval of the sponsoring body;
(w) to appoint either on contract or otherwise, visiting professors, emeritus professors, consultants, fellows, scholars, artists, course writers and such other persons who may contribute to the advancement of the objects of the Private University;
(x) to organise and to undertake extra-mural studies and extension service;
(y) to do all such other acts and things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Private University.
14. Admission. - (1) Every Private University shall, subject to the provisions of this Act and the relevant statutes and regulations of the UGC and other regulatory bodies, as the case may be, be open to all persons.
21. Relevant to this case would be the power that is vested in PU for the grant of diplomas, degrees and other certification and academic distinction, on the basis of the examinations conducted by it. Thus, the power to test the student, to assist and award them diplomas, degrees and other recognition is inherent in a PU.
22. In addition, Clause(q) entitles the PU to prescribe, demand and receive payment of fee and other charges as well. Residual clause(y) entitles the PU to engage in any other act as may be necessary, incidental and conducive to https://www.mhc.tn.gov.in/judis 14 WP.Nos.1392 and 9236 of 2022 the attainment of objects of the PU. This, in a nutshell, outlines the scope and powers of a PU.
23. The PU in this case, the DSU, then applied to the National Medical Commission seeking allotment of seats and, by communication dated 22.09.2021 was granted approval for 150 seats. The approval had been granted after a rigorous inspection protocol and the petitioner having satisfied several stages of compliances. Thereafter, the petitioner had constituted an internal fee regulation committee under the chairmanship of a former Judge of this Court, to fix on a fee structure for the MBBS course and the structure of fee is stated to have been fixed under fee fixation order dated 11.10.2021. The procedure for admission of students had been commenced thereafter in line with the petitioner’s interpretation of the various provisions of the Act, including Section 14 thereof.
24. While this was so, the impugned notification bearing No.003/SCSI(I)/2021 came to be issued by the R5, informing all self-financing medical/dental institutions in the State of Tamil Nadu, that their seats matrices for MBBS/BDS courses for Academic Year (AY) 2021-22 will be included in State/Management quota counselling, only if they have affiliation to the Tamil Nadu MGR Medical University, Chennai (in short ‘TNDr.MGRMU’). https://www.mhc.tn.gov.in/judis 15 WP.Nos.1392 and 9236 of 2022
25. Since the petitioner does not have an affiliation with the Dr. MGR MU, being an affiliate of the PU, it has been unable to participate in the State counselling. Even prior thereto, the petitioner had, immediately on allocation of the seats on 22.09.2021, approached the DGHS for allocation of seats. This request had come to be rejected by the DGHS stating that the petitioner did not satisfy either of the requisite clauses under which counselling was to be conducted.
26. The above stand of DGHS came to be known to the petitioner only when it approached the Hon’ble Supreme Court by way of a writ petition in W.P.No.1273 of 2021 seeking the following reliefs:
“(a) Pass a direction/order that the name of the Petitioners herein be included for counseling under Medical Counseling Committee, Directorate General of Health Services, Government of India, New Delhi;
(b) Without prejudice to prayer clause (a), pass a direction/order clarifying as to who is the Competent Authority for conducting MBBS Counselling for Private Colleges affiliated to State Private Universities.
(c) Direct the Respondents not to release the dates for MBBS Counselling till the final disposal of this petition; and
(d) Pass such further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”
27. Ultimately, the writ petition came to be dismissed by order dated 20.01.2022, accepting the objection of the learned Additional Advocate https://www.mhc.tn.gov.in/judis 16 WP.Nos.1392 and 9236 of 2022 General that remedy under Article 226 of the Constitution of India before the Madras High Court would be more appropriate. Thus, while dismissing the petition, it was left open to the petitioners to pursue remedy before the High Court. Hence, this writ petition.
28. The prayer in the writ petition is for a certiorarified mandamus quashing notification dated 03.01.2022 and directing R5 to include the name of the petitioner institution for counselling for filling up 35% of the 150 seats allotted to the institution by R3 as also directing R1 to consider the petitioner’s representation dated 29.10.2021 and instruct R2 to include the name of the petitioner institution in the counselling process for the balance 65% of the 150 MBBS seat allotted to it.
29. I have heard the detailed submissions of Mr.Vijay Narayan, learned Senior Counsel for Mr.AbhishekJeenasenan for the petitioner, the learned Advocate General assisted by Mr.D.Ravichandrer, learned Special Government Pleader for R4/State of Tamil Nadu, Mr.Srinivasa Murthy, learned Special Panel Counsel for the Union of India and for R2/Director General of Health Services. Ms.Subharanjini Ananth for R3/National Medical Commission, Mr.Amit Anand Tiwari, learned Additional Advocate General assisted by learned Special Government Pleader for R5/Additional Director of Medical https://www.mhc.tn.gov.in/judis 17 WP.Nos.1392 and 9236 of 2022 Education/Secretary, Selection Committee and Mr.P.R.Gopinathan for R6/the University Grants Commission impleaded on 10.02.2022 by this Court.
30. In sum and substance, the petitioner argues that it has been abandoned by both the Centre and State as neither wish or seem inclined to support the petitioner for counselling and admission of students in the seats allotted.Severalprovisions of the Act are referred to in this connection to bring home this primary submission, as detailed in the paragraphs to follow.
31. The submissions of Mr. Narayan are summarised as follows. The petitioner is an associate entity of the Private University that was established under a Letter of Intent, dated 24.09.2021 issued by R3/National Medical Commission. The University to which is affiliated has complied with all requirements under the Act including the incurrence of expenditure as set out thereunder for the obtaining of approval as a PU under the Act.
32. The medical college has also been set up at great effort and cost and comprises of a fully functional hospital with cutting-edge facilities and all infrastructure for running of the college, of the high standards and quality as expected and envisaged under the Act. In recognition of the adequacy of the infrastructure and all other facilities created by the PU for medical education, R3 has granted permission for commencement of the MBBS course in the petitioner college, for AY 2021-2022 onwards with an intake of 150 seats. https://www.mhc.tn.gov.in/judis 18 WP.Nos.1392 and 9236 of 2022
33. The provisions of Section 14 of the Act provides for the methodology for admission of the students. As per the plain language of the provision, a minimum of 35% of the seats are to be reserved for resident students of the State of Tamil Nadu and the balance 65% assume an all India character. As the enactment does not set out the procedure to be followed for allotment of seats, the petitioner proceeded to fill in the seats as per existing procedure, in strict compliance of the relevant Statutes, Regulations of the University Grants Commission and other regulatory bodies.
34. The use of the phrase ‘open to all students’ in Section 14 makes it clear that the University is expected to comprise of a wide student base in line with the other mandates of being an institution of global standards. Section 14 constitutes a self-contained provision, that sets out the methodology for conduct of admissions in the college. Thus, and on a reading of Section 14, the petitioner understands the provision to require allocation of a minimum of 35% of students to those from Tamil Nadu and the remaining to those from All India Quota (AIQ). The petitioner claims that in line therewith, fee has been fixed in a regulated manner by a Committee headed by a former Judge of this Court.
35. The Act vests complete authority in the PU to conduct courses and award degrees and it is these attributes that constitute salient features of an established University. Thus, PUs created under the TNPU Act are vested with https://www.mhc.tn.gov.in/judis 19 WP.Nos.1392 and 9236 of 2022 all attributes of a fully functional University endowed with necessary powers and features to function as such. That apart, the Act envisages checks and balances as well as control to be exercised by the State in the event of violations/defalcations in the functioning of the PU.
36. Stress is laid on the object of the Act which has conceived of institutions that achieve global standards in education. It is to this end that provisions have been made to enable contributions from philanthropists to source and fund research, innovation and academic excellence. Insistence on affiliation with the TNDr.MGRMU is entirely misplaced as a college cannot seek affiliation with two Universities and as the provisions of Section 3 of the Act require its association specifically with the PU constituted under the TNPU Act.
37. The petitioner relies upon the following decisions referred to and elaborated at the appropriate juncture in this order:
(i) State of Tami Nadu Vs. P.A.Inamdar and Others [(2006 13 SCC 293].
(ii) Maharishi Markandeshwar Medical College and hospital and Others Vs. State of Himachal Pradesh. and Others [(2017) 6 SCC 675];
(iii) Dalco Engineering Private Limited Vs. Satish Prabhakar Padhye and Others [(2010) 4 SCC 378];
https://www.mhc.tn.gov.in/judis 20 WP.Nos.1392 and 9236 of 2022
(iv) Allahabad Bank Vs. Canara Bank and Another, [(2000) 4 SCC 406];
(v) (Maharishi Markandeshwar University and Another Vs. State of H.P. and Others [AIR 2021 (NOC 257) 92];
(vi) Madha Engineering College Vs. State of Tamil Nadu and Others [(2007) 4 CTC 13];
(vii) S.Ashwin Kumar Vs. State of Tamil Nadu [(2007 (2) CTC 677];
(viii) Maharishi Markandeshwar University and Another Vs. State of H.P. and Others [AIR 2021 HP 56]
38. The State of Tamil Nadu had earlier enacted the Tamil Nadu Professional Educational Institutions (Regulation and Admission and Determination of Fee) Act 2006. The validity of the aforesaid enactment came to be challenged and the First Bench of this Court in the case of Madha Engineering College (supra), allowed the appeals filed by the colleges, concluding that some of the provisions of that enactmentwere violative of Articles 19(1)(g) 30 of the Constitution of India.
39. The matter is pending before the Hon’ble Supreme Court and there has been no interim protection granted. The State has, however, in the counter filed to this writ petition on stated that the TN Act 3 of 2007 had been ‘struck down’ which, admittedly, is not factually correct. https://www.mhc.tn.gov.in/judis 21 WP.Nos.1392 and 9236 of 2022
40. The first defence putforth by the respondents is one of maintainability of the writ petition. According to them, the prayer of the petitioners seeking relief as it has, is not liable to be granted as permitting an institution to participate in counselling falls within the domain and decision of the relevant authorities,that is, the State for State quota andthe Director General of Health Services (in short DGHS), for the AIQ.
41. The respondents also allege suppression of material facts, and referring to the judgement of the Hon’ble Supreme Court in the case of Prestige Lights Ltd vs. State Bank of India ((2007) 8 SCC 449), urge that the writ petition is liable to be dismissed on this short point.
42. That apart, and on the merits of the relief sought, the respondents point out that the practice followed till date is for the State and the Institution in question to arrive at an agreed seat-sharing arrangement. Such agreements are consensual and it is based thereupon that the process of counselling is conducted. As far as Government and Management Quotas (in short, ‘GQ’ and ‘MQ’, respectively) in unaided, self-financing colleges is concerned, the sharing of seats is on a 65:35% basis and in the case of minority institutions, the sharing ratio is 50:50%.
43. All institutions engaged in medical education are required to submit to a fee-fixation committee, headed by a former Judge of this High Court, that https://www.mhc.tn.gov.in/judis 22 WP.Nos.1392 and 9236 of 2022 includes chartered accountants, that assessees the assets, income and expenditure of the institution in question and fixes the fee to be charged separately for Government and Management quotas.
44. This is the practice being followed as on date, per the dictum of the judgements of the Apex Court in Islamic Academy of Education vs. State of Karnataka ((2003) 6 SCC 697) and P.A.Inamdar vs. State of Maharashtra ((2005) 6 SCC 537). Since the petitioner has, admittedly, not submitted to either of the two explicit processes as aforesaid, the writ petition and prayer are not maintainable.
45. The Apex Court, in the case of Dar-Us-Slam Educational Trust and others(Writ Petition (Civil) No. 267 of 2017) had issued comprehensive directions on the manner by which common counselling had to be undertaken by colleges. Thus, answering the prayer of the petitioner would have the ramnification of clarifying the judgement of the Apex Court as above, which is wholly inappropriate, they argue.
46. I find no merit on the challenge to maintainability of the writ petition. After all, the petitioner is a constituent college of a PU established under a State enactment. Both the PU and the colleges are thus entitled to put to use all the available mechanisms to ensure that the may engage in all permitted activities. The impugned notification clearly lays an embargo upon their ability https://www.mhc.tn.gov.in/judis 23 WP.Nos.1392 and 9236 of 2022 to participate in the counselling and admission process and the veracity or otherwise of the rival submissions have to be appreciated and evaluated on the merits or demerits of the same, and in the light of the provisions of the respective enactments.Challenge to maintainability is rejected.
47. The respondents have put up stiff resistance to the claims of the petitioneron merits, and their submissions may be briefly summarized to state as follows. The Supreme Court had not entertained the claims of the petitioner and merely relegated them to the High Court, which by itself would establish that their claims are bereft of merit. The Dr.MGR Medical University Chennai Act 1987 (Tamil Nadu Act 37 of 2019) (in short ‘TN Dr.MGR University Act’) is a comprehensive enactment that provides for the regulation of medical colleges in the State of Tamil Nadu, and applies to every college and institution specified in the schedule and all colleges and institutions deemed to be affiliated to, or approved by the University under that Act.
48.The coverage of the aforesaid enactment extends to every college or institution situated within the University area and which may be affiliated to, or approved by the University in accordance with the provisions of this Act and every college and institution situated within the University area which conducts any course of study or impart any course of training which may qualify for the award of any degree, diploma or other academic distinctions by the University https://www.mhc.tn.gov.in/judis 24 WP.Nos.1392 and 9236 of 2022 in any system of medicine. Thus, according to the respondents, there is a compulsion laid upon every medical college in the State to affiliate and come within the control of the Dr.MGR Medical University only.
49. That apart, the definition of a ‘college’ under Section 2(d) of the TNDr.MGR University Act would encompass any college or institution maintained by or affiliated to the University and providing courses of study or training in medical science for admission to the examinations for degree, diplomas and other academic distinctions of the University, and thus includes all colleges, including the petitioner institution.
50. The Standing Academic Board of the Dr.MGR University is a comprehensive medical board that includes the Vice-Chancellor, the Director of Medical Education, the Director of Medical Services and Family Welfare, the Director of Public Health and Preventive Medicine, the Director of Indian Medicine and Homeopathy, the Presidents of the Faculties of the University and the Chairmen of the Boards of Studies of the Universities.
51. The scope of in-depth participation and monitoring contemplated under the TN Dr.MGR University Act, when compared with the provisions of the TNPU Act, reveal that it is the former that has been envisaged and established as the premier and exclusive University in the State of Tamil Nadu https://www.mhc.tn.gov.in/judis 25 WP.Nos.1392 and 9236 of 2022 to have the authority to affiliate onto itself medical colleges established in the State.
52. The provisions are comprehensive and in-depth making it apparent that is the only competent University that can regulate the system of medical education in the State. It is thus incorrect for the petitioner to claim affiliation with any other University and affiliation with the TN Dr.MGR University is mandatory for its participation in counselling.The prayer of the petitioner to this extent, is contrary tothe scheme as contemplated under the Act and cannot be countenanced.
53. As far as the claim for central counselling is concerned, the Director General of Health Services (DGHS) and the Medical Council Committee (MCC) conduct counselling as set out under Section 3 of the University Grants Commission Act, 1956. However, since the petitioner college is established under a State Act, the intervention of DGHS is not possible.Reference in this regard is made to Clause-5A of the Regulations on Graduate Medical Education, 1997.
54. The first issue to be decided is thus, as to whether affiliation to the TN Dr. MGR University is mandatory. As a prelude, I refer in brief to the provisions of the TNPU Act to understand the scope and expansiveness of the same. The initial provisions relating to the definitions, establishment of the https://www.mhc.tn.gov.in/judis 26 WP.Nos.1392 and 9236 of 2022 Private University, association therewith and the process of admission have already been referred to in the preceding paragraphs.
55. Moving ahead, the provisions of Section 15 to Section 32 elaborate on who the officers of the PU shall be, being the Chancellor, Vice-Chancellor, Registrar, Deans and Directors, Financial Officers, Controller of the Examinations and such others who may be declared by the Statutes to be its officers.
56. They also stipulate the powers of each of the officers as aforesaid in Sections 16 to 23 of the Act. Section 24 states that the authorities of the PU shall be the Governing Council, Executive Council and an Academic Council, Financial Committee, Planning Board and such other authorities as may be declared by the Statutes to be its authorities. The constitution of the various Councils/Committee/Board and their functions and powers are set out between Sections 25 and 29 of the Act.
57. The Act envisages the constitution of a Board of Faculty and Admission Committee, an Examination Committee and other such authorities depending on the requirement which may be declared by the Statutes to be the authorities of the PU and their functions.
58. Section 33 states that the Statutes and Ordinances to govern the functioning of the PU shall be drafted by the Executive Council subject to the https://www.mhc.tn.gov.in/judis 27 WP.Nos.1392 and 9236 of 2022 approval of the Managing Committee and may provide for all or any of the following matters:
(a) the admission of students to the Private University and their enrolment as such;
(b) the courses of study to be laid down for all degrees, diplomas and certificates of the Private University;
(c) the medium of instruction and examination;
(d) the award of degree, diploma, certificate and other academic distinctions, the qualification for the same and the matters to be taken relating to the granting and obtaining of the same;
(e) the fees to be charged for courses of study in the Private University and for admission to the examinations, degrees, diplomas and certificates of the Private University;
(f) the conditions for the award of fellowships, scholarships, studentships, medals and prizes;
(g) the conduct of examinations, including the term of office and manner of appointment and the duties of examining bodies, examiners and moderators;
(h) the conditions of residence of the students of the Private University;
(i) the special arrangements, if any, which may be made for the residence, discipline and teaching of women students and prescribing of special courses of studies for them within the Private University;
(j) the appointment and emoluments of employees other than those for whom provision has been made in the statutes;
(k) the establishment of Centre of Studies, Boards of Studies, Inter-
disciplinary Studies, Special Centres, Specialised Laboratories and other Committee;
https://www.mhc.tn.gov.in/judis 28 WP.Nos.1392 and 9236 of 2022
(l) the manner of co-operation and collaboration with other Universities and authorities including learned bodies or association;
(m) the creation, composition and functions of any other body which is considered necessary for improving the academic mileage of the Private University;
(n) the remuneration to be paid to the examiners, moderators, invigilators and tabulators;
(o) such other terms and conditions of service of teachers and other academic staff as are not prescribed by the statutes.
59. The entirety of Section 33 is subject to the provisions of the Act and the Statutes. Section 34 states that the Executive Council shall consult the Managing Committee in the framing of Ordinances. Section 35 provides for the preparation of Annual Report and the manner by which the same is to be considered. Section 36 refers to the preparation of Annual Accounts and Balance Sheet and the manner of ratification of the same.
60. Section 37 relates to the manner of employment of employees of the PU and the resolution of disputes that may arise in this connection. Section 38 talks of the manner by which persons shall be admitted to a course of study in the PU and the pre-conditions in that regard. Section 39 grants authority for PU to constitute pension or other welfare schemes.
61. Sections 40 to 45 relates to the specific manner by which various administrative acts shall be carried out by the Private University. Section 46 states that the sponsoring body i.e. the Trust shall establish a permanent https://www.mhc.tn.gov.in/judis 29 WP.Nos.1392 and 9236 of 2022 endowment of a minimum of Rs.50,00,00,000/- and that the PU shall have the power to invest the endowment fund in any manner as may be prescribed. Discretion is also granted to the PU for deployment of the funds between the General/Development/Permanent Endowment Funds.
62. The funds established as aforesaid, and referred to in paragraphs No.46 to 48, are subject to the general supervision and control of the governing council. Section 50 sets out the overriding power of supervision of the Government in this endeavour and is extracted below:
50. Power of Government to call for information and records. -
(1) It shall be the duty of a Private University or any authority or officer of the Private University to furnish such information or records relating to the administration or finance and other affairs of the Private University as the Government may call for. (2) The Government, if it is of the view that there is a violation of this Act or the statutes or ordinances made thereunder, may issue such directions to a Private University under section 54 as it may deem necessary.
63. Section 51 and 52 provides for the dissolution of the PU. Section 53 vests in the Government, the authority to deal with complaints/allegations against the PU in regard to deficiencies in functioning and violations committed n regard to matters deals with under the Act, and the manner by which the Government is expected to deal with such complaints. The procedure under Section 53 is detailed, and upon conclusion of the procedure provided for https://www.mhc.tn.gov.in/judis 30 WP.Nos.1392 and 9236 of 2022 enquiry and verification, the Government has the discretion to decide to either continue the functioning of the PU or to de-recognize it.
64. Section 53 is extracted below:
53. De-recognition of Private University by the Government. - (1) Where the Government receives a complaint with material and substantial allegation that any Private University is not functioning in accordance with the provisions of this Act, it shall require the Private University to show cause within such time, which shall not be less than two months referring a copy of the complaint as to why the Private University should not be de-
recognised.
(2) If, upon receipt of the reply of the Private University to the notice given under sub-section (1), the Government is satisfied that a prima facie case of mismanagement or violation of the provisions of this Act in the functioning of the Private University is made out, it shall order such inquiry as it deems necessary. (3) For the purposes of an inquiry under sub-section (2), the Government shall by notification, appoint an officer or authority as the enquiring authority to enquire into the allegations of violation of the provisions of this Act.
(4) Every inquiring authority appointed under sub-section (3) shall while performing its functions under this Act have all the powers of Civil Court under the Code of Civil Procedure, 1908 (Central Act V of 1908) trying a suit and in particular in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any witness and examining him on oath;
(b) requiring the discovery and production of any document;
(c) requisitioning any public record or copy thereof from any office;
(d) receiving evidence on affidavits;
(e) any other matter which may be prescribed. (5) If, upon receipt of the inquiry report, the Government is satisfied that the Private University has violated any provisions of this Act, it shall direct the Private University to make necessary https://www.mhc.tn.gov.in/judis 31 WP.Nos.1392 and 9236 of 2022 improvement and suggest for proper implementation of the provisions of this Act.
(6) If it is observed that the Private University is violating the Act continuously leading to a situation of financial mismanagement and maladministration has arisen in the Private University which threatens the academic standards of the Private University, it may appoint an administrator.
(7) The administrator appointed under sub-section (6) shall exercise all the powers and perform all the duties of the Governing Council and the Management Committee under this Act and shall administer the affairs of the Private University until the last batch of the students of the regular courses have completed their courses or syllabus and they have been awarded with degrees, diplomas or other academic distinctions, as the case may be.
(8) After having been awarded the degrees, diplomas or academic distinctions, as the case may be, to the last batches of the students of the regular courses, the administrator shall make a report to that effect to the Government.
(9) On receipt of the report under sub-section(8), the Government after due consideration, continue the functioning of the Private University by vesting the powers of the Governing Council in any other sponsoring body having similar objectives or may with the prior approval of the Universities Grants Commission and other regulatory bodies concerned de-recognise the Private University. (10) During the process of de-recognition under sub-section (9), the Government may utilise the permanent endowment fund, the general fund or the development fund for the purpose of the management of the affairs of the Private University. If the funds of the Private University are not sufficient to meet the requisite expenditure of the Private University, the Government may dispose of the assets or the properties of the Private University to meet the said expenses.
65. In line with the supervening provision for control that is vested in the Government, Section 54 also provides for the issuance of directions periodicallyby the Government to the PU on policy matters, if necessary. Such https://www.mhc.tn.gov.in/judis 32 WP.Nos.1392 and 9236 of 2022 directions, Section 54 says ‘shall be complied with by the University’. Section 55 also states that in case of dissolution/derecognition, the assets and properties and the liabilities shall vest in the sponsoring body i.e. the Trust.
66. Section 56 which provides the umbilical cord between the Government and the PU concerned, states that the Government shall constitute a regulatory body to promote teaching, research, development and training in a manner so as to provide global standards of higher education to the students in the State.
67. This regulatory body is to comprise of members whose qualification is prescribed in the Rules and whose powers and functions are to be prescribed. The Rules as aforesaid are to be laid before the Legislative Assembly and shall be issued only after approval is granted by the Assembly. No rules have been framed thus far, for the said purpose, as on date.
68. Section 56 is an important provision in this laudable endeavor of the State, to bring forth an era of Public-Private Partnership in medical education. The State assumes the mantle of setting the overall direction and supervision in this regard, and the private enterprise provides the muscle, time, effort, energy and expertise to carry this vision into fruition. Substantial responsibility is cast upon the State as well the Private University concerned, in this regard. https://www.mhc.tn.gov.in/judis 33 WP.Nos.1392 and 9236 of 2022
69. Conceptually, it is an effort that must gladden the heart of any citizen of this Country and State, seeing as a successful partnership would position the country on a vantage spot on the world stage as far as standards of excellence in medical education are concerned. The TNPU Act, as enacted, is part of the armoury of State enactments, conceptualized and enacted by the State of Tamil Nadu, in the manner provided for in law.
70.It would thus have to be given effect to, in full and cannot be wished away by the State as they appear inclined to do. Since the Act and the provisions are live and extant as on date, they have to be afforded full play, and the endeavour of the State and all stakeholders must be to fully implement the provisions in harmony with other enactments, regulations and guidelines.
71. There is no justification in the stand of the respondents that the provisions of the TNPU Act would apply only in regard to the University itself, i.e. the DSU University and that its constituent colleges would continue to be bound by rules of affiliation with other Universities. This stand is clearly contrary to the provisions of Section 3 of the TNPU Act and also an unworkable stand as a college may be affiliated only to one University and not to multiple Universities.
72. Clearly, there has been a departure in the thinking of the State from the time when the TNPU was enacted to the present day. However, such a https://www.mhc.tn.gov.in/judis 34 WP.Nos.1392 and 9236 of 2022 deviation in stand is unsupported from the provisions of the TNPU Act. The PU established under the TNPU Act is a full-fledged University which holds unto itself, the power of affiliating constituent colleges such as the petitioner college.
73. On a combined reading of the provisions of the Act, I also find that there are sufficient measures in place to ensure that both the University and the college are compliant with all applicable regulations of regulatory authorities. It is thus, for the regulatory body as well as the State mechanisms provided for under the TNPA Act to ensure that they are robust and address deficiencies, if any, from time to time.
74.I now refer to the provisions of the TN Dr.MGR Medical University Act, as relevant, that have a bearing upon the issue of affiliation. No doubt, the enactment is specific to medical education and comprehensive in its coverage. It is described as ‘An Act to provide for establishment and incorporation of a Medical University in the State of Tamil Nadu’.
75. Section 1 sets out the Short title, extent, application and commencement as follows:
(1) This Act may be called the Tamil Nadu Dr. M.G.R. Medical University [Chennai] Act, 1987.
(2) It extends to the whole of the State of Tamil Nadu. (3) It applies to -
(a) every college and institution specified in the Schedule;
https://www.mhc.tn.gov.in/judis 35 WP.Nos.1392 and 9236 of 2022
(b) all colleges and institutions deemed to be affiliated to, or approved by, the University under this Act;
(c) every other college or institution situated within the University area and which may be affiliated to, or approved by, the University in accordance with the provisions of this Act, statutes and ordinances and regulations made thereunder; and
(d) every college and institution situate within the University area, which conducts any course of study or imparts any course of training which may qualify for the award of any degree, diploma or other academic distinctions by the University in any system of medicine.
76. Section 1(3)(d), brings within the cover of this University colleges situated in the ‘University area’engaged in dissemination of medical education, defined Section 2(r) as meaning‘the area to which this Act extends under sub- section (2) of section 1 excluding the Annamalai Nagar as defined in clause (a) of section 2 of the Annamalai University Act, 1928 (Tamil Nadu Act I of 1929)’.
77. A ‘University college’, is defined under Section 2(s) as a college maintained by the University, whether instituted by it or not, and which provides courses of study or training, leading to a degree, diploma or other academic distinctions of the University;
78. Other relevant definitions are set out below:
2. - In this Act, unless the context otherwise requires,-
(a) "affiliated college" means any college or institution, situate within the University area and affiliated to the University and providing courses of study in medical science for admission to https://www.mhc.tn.gov.in/judis 36 WP.Nos.1392 and 9236 of 2022 the examinations for degree, diplomas and other academic distinctions of the University and includes a college deemed to be affiliated to the University under this Act and includes an autonomous college;
(b) "approved institution" means any hospital, centre or other institution situated in the University area which-
(i) is approved by the University; and
(ii) provides training for admission to the examinations for degrees, diplomas and other academic distinctions of the University;
(c) "autonomous college" means any college designated as an autonomous college by or under the statutes;
(d) "college" means any college or any institution maintained by, or affiliated to the University and providing courses of study or training in medical science for admission to the examinations for degrees, diplomas and other academic distinctions of the University;
79. The powers of the University are enumerated in Section 5 to read asfollows:
5. Powers of University. - The University shall have the following powers, namely:-
(1) to hold examinations and to confer degrees, diplomas and other academic distinctions on any person who : -
(a) shall have pursued an approved course of study or training in a college or University laboratory or an approved institution unless exempted therefrom in the manner prescribed by the statutes and shall have passed the examinations prescribed by the University; or
(b) shall have carried on research under conditions prescribed by the statutes;
(2) to confer degrees, diplomas and other academic distinctions on persons who shall have pursued an approved course of study, training or research in an autonomous college;
https://www.mhc.tn.gov.in/judis 37 WP.Nos.1392 and 9236 of 2022 (3) to confer honorary degrees or other honorary academic distinctions under conditions prescribed;
(4) to establish, maintain and manage institutes of research, University colleges, departments, laboratories, hospitals, libraries, museums and other institutions necessary to carry out the objects of the University; (5) to affiliate colleges to the University as affiliated colleges, within the University area under conditions prescribed and to withdraw such affiliation:
Provided that no college shall be affiliated to the University unless the permission of the Government to establish such college has been obtained and the terms and conditions, if any, of such permission have been complied with;
(6) to take over any Government college or institution with the approval of the Government;
(7)to approve institutions providing training for admission to the examinations for degrees, diplomas and other academic distinctions of the University under conditions prescribed and to withdraw such approval:
Provided that no institution shall be affiliated to the University unless the permission of the Government to establish such institution has been obtained and the terms and conditions, if any, of such permission have been complied with;
80. Section 5 sets out the powers of the University and includes therein, the power to affiliate colleges and institutions thereto. The provisos, emphasised in bold above, make it clear that such affiliation shall be subject to the approval of the government. In the present case, the expert committee constituted by the State Government has, on 28.05.2020, approved the setting up of the PU and the State has included the DSU in the schedule to the Act vide https://www.mhc.tn.gov.in/judis 38 WP.Nos.1392 and 9236 of 2022 G.O.(Ms) 11 dated 20.01.2021. All consequences of the TNPA must accordingly follow.
81. Section 3 of the TNPU Act provides for the setting up of constituent colleges under, and affiliated to the PU and the letter of intent of the PU for setting up of a medical college has been accepted by the NMC by allotment of 150 seats. Moreover, the Government Order does not require constituent colleges obtain affiliation from any other University.
82. The aforesaid approvals and sanctions have been granted after due and detailed enquiry and verification of all requirements under the TNPU as well as the applicable regulations. There is nothing whatsoever to indicate on a reading of all the relevant material, that constituent colleges a PU also require affiliation from the TN Dr.MGRMU, and rightly so, as a college cannot be associated with two Universities simultaneously.
83. Much emphasis has been laid on the provisions of Section 6 that read as follows:
6. Colleges situate within the University area not to be affiliated to any other University and recognition of institutions byUniversity. -
(1) No college or institution within the University area shall be affiliated to any other University other than the Tamil Nadu Dr. M.G.R. Medical University, Chennai.
(2) No institution affiliated to, or associated with, or maintained by, any other University whether within the State of Tamil Nadu or outside the State of Tamil Nadu shall be recognized by the University for any purpose except with the prior approval of the Government and the University concerned.
https://www.mhc.tn.gov.in/judis 39 WP.Nos.1392 and 9236 of 2022
84. Section 6(1) lays down a mandate that colleges within the University area must be affiliated to the TN Dr.MGRMU. Sub-section (2) relates to the bar on recognition of institutions that are not affiliated or associated with the TN Dr.MGR MUand is not relevant except to the extent that it makes the intention of the State clear, that not only colleges, but also institutions, both the terms, ‘college’ and ‘institution’ carrying different definitions, must be subject to State control and supervision.
85.The TNPU Act is a later enactment, of the year 2019, and the State was well aware of the mandate under the TN Dr.MGR Medical University Act when the 2019 Act was passed. There is however no stipulation under the 2019 act requiring affiliation to another University under the TNPU Act.
86. Incidentally, the phrase used under Section 3 of the 2019 Act is ‘constituent college’ and not ‘affiliated college’. In general parlance, an affiliated institution is an educational institution that operates independently, but also has a formal collaborative agreement with another, usually larger institution, whereas, a Constituent College means a college or institution established and maintained by the University. The difference in language has not escaped my attention. However, both an affiliated as well as a constituent https://www.mhc.tn.gov.in/judis 40 WP.Nos.1392 and 9236 of 2022 college are subject to the control and influence of the University over its academic policies and standards.
87.The National Medical Commission, in the National Medical Commission Act 2019 does not deploy the term ‘constituent’. It does however, refer to ‘affiliated’ colleges, in an inclusive manner while defining ‘medical institutions’ to mean ‘any institution within or outside India whichgrants degrees, diplomas or licences in medicine and include affiliated collegesand deemed to be Universities’.
88.The requirement of affiliation is for quality control and for maintenance of standards. The importance of this requirement cannot be emphasized enough, particularly, in the context of medical education. However, a certain harmony has to read into State policy and enactments, while understanding them.
89.All constituent colleges of a PU are to confirm to regulatory measures and mechanisms to ensure full and complete adherence to the highest standards in the dissemination of education, including in the field of medicine. Various provisions in the PU Act provide for such safety and supervisory measures. No doubt, the provisions of the TNDr.MGRMU Act are more expansive and also specific to medical education. However, this is no reason, in my view, to insist upon another affiliation, when all the rigour that may be imposed by such https://www.mhc.tn.gov.in/judis 41 WP.Nos.1392 and 9236 of 2022 affiliation, such as the power to supervise activities, initiate punitive action and even dissolve the PU vest in the Government of the day and regulatory bodies.
90.The Tamil Nadu Private Universities Act has been enacted bearing in mind certain aspirations and a vision for the State that must be achieved with the full co-operation and wisdom of the State. At the time of enactment, evidently, the State did not think it necessary to mandate affiliation/association with the TN Dr.MGRMedical University else appropriate language would have featured therein. Even the definition of ‘regulatory bodies’ does not include reference to the TN Dr.MGR Medical University. The freedom to regulate its affairs though under the watchful eyes of the State and regulatory bodies, have been granted to the PU and its constituents.
91.Such liberty, free from the shackles of bureaucratic and cumbersome functioning, but tempered by the discipline of the State and expert regulatory bodies is the bedrock of achievement and this is what the TNPU Act appears to aspire to. There has been a conscious intention of the State to provide for a parallel methodology of disseminating medical education through, and involving, Private Universities and constituent colleges.
92.If at all the State, with the passage of time, becomes wiser to corrections or amendments that are called for, it is for the authorities to take appropriate remedial measures at that juncture in time. To dilute the application https://www.mhc.tn.gov.in/judis 42 WP.Nos.1392 and 9236 of 2022 of the TNPU Act to the extent to which they now seek, would be to eschew its very object and purpose, and is, in my considered view, impermissible and myopic.
93.I draw support in this regard from a judgement of the Hon’ble Apex Court in the case of Maharishi Markandeshwar University(supra) (in short ‘MMU’) on very similar facts and legal position as before me. The facts in the case of MMU are similar to those to this case. MMU had also established a constituent medical college that had conformed to the processes set out under the Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010 (in short ‘2010 Act’). The State Government as well as all other Regulatory bodies has consented to, and approved the setting up of the medical college.
94.While this is so, the Government of Himachal Pradesh had opined that the college was only a constituent college of the MMU University and required affiliation, in addition, from the Himachal Pradesh University. This requirement was set aside by the Hon’ble Apex Court, which, on a consideration of the powers accorded to the University under the 2010 Act held that it was fully vested with all powers necessary for establishment of a self- contained and unitary University. In such circumstances, the appellant college, https://www.mhc.tn.gov.in/judis 43 WP.Nos.1392 and 9236 of 2022 being a constituent of the MMU could not be compelled to obtain affiliation from another University.
95.A comparison of the powers and functions that have been endowed upon the MMU under the 2010 Act are akin to those set out under the TNPU Act. In my considered view, the fact that MMU had been constituted under a separate Act of State and the DSU constituted as a PU under the TNPU Act, would not make any material difference as their purpose, objects and intendment remains the same. The relevant portions of the judgment are extracted below:
....
31. Indeed, affiliation from University may be a pre-
condition for starting any college or new courses. The constituent college of the Appellant No. 2 – University would therefore, at best, require affiliation from the Appellant No. 2. This position has been accepted even by the Medical Council of India and the Union of India. It is, however, the State Government which has been insisting that the Appellant No. 1- College must take affiliation from the Himachal Pradesh University established under the Himachal Pradesh University Act, 1970. To buttress that stand, reliance is placed on Section 7 of the Act of 1970. The same reads thus:
“7. Jurisdiction of the University. (1) Save as otherwise provided by or under this Act, the powers conferred on the University shall be exercisable in the area constituting Himachal Pradesh.
(2) Notwithstanding anything contained in any other law for the time being in force, no https://www.mhc.tn.gov.in/judis 44 WP.Nos.1392 and 9236 of 2022 educational institution situated within the territorial limits of the University shall be admitted to any privilege of any other University, incorporated by law in India, and any such privilege granted by any such other University to any such educational institution prior to the commencement of this Act, shall unless otherwise directed by the State Government be deemed to be withdrawn on the commencement of this Act, and any such institution shall be deemed to be admitted to the privileges of the Himachal Pradesh University.
(3) Where any institution or body established outside Himachal Pradesh seeks recognition from the University, then the powers and jurisdiction of the University shall extend to such institution or body subject to the laws in force in the State within which, and the rules and regulations of the University within whose jurisdiction, the said institution or body is situated.” 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.
32. Since the Appellant No. 2 did not accede to the demand of the State Government, provisions of the 2006 Act, came to be amended so as to widen the scope of that Act, requiring all the Private Medical Educational Institutions set up in the State to take affiliation from the Himachal Pradesh University. Notably, no corresponding amendment has been https://www.mhc.tn.gov.in/judis 45 WP.Nos.1392 and 9236 of 2022 made in the 2010 Act under which the Appellant No.2 – University has been established as an independent autonomous University. Nor has any amendment been made in the Himachal Pradesh University Act, 1970, mandating affiliation of the constituent college of another University established under a special State Legislation. We may not be understood to have expressed any opinion either way, that such a course is permissible.
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. It is not the case of the Appellants that they are not governed by the other provisions of the 2006 Act, but the limited grievance is that the amendment made to Section 3 of this Act has the effect of making an inroad into the autonomy of the Appellant No. 2 – University, in respect of matter of grant of https://www.mhc.tn.gov.in/judis 46 WP.Nos.1392 and 9236 of 2022 affiliation to its constituent college. For considering this argument, we must advert to Section 3, as it originally stood. The same reads thus :-
“3.Regulation of admission, fixation of fee and making of reservation.- (1) The State Government may regulate admission, fix fee and make reservation for different categories in admissions to Private Medical Educational Institutions.
(2) The State Government shall ensure that the admission under all the categories in an institution is done in a fair and transparent manner;
(3) The State Government, may constitute an Admission and Fee Committee, (hereinafter referred to as the ‘Committee’) consisting of such members as may be specified by the State Government, by notification, to recommend the mode of admission, making of reservation, allocation of seats and fixation of fees etc. to the State Government.
(4) The State Government, shall oversee the working of Admission and Fee Committee.
(5) The terms and conditions of the Committee constituted under sub-section (3) and its members shall be specified, by the State Government, by notification from time to time.
(6) If the State Government is satisfied that the institution affiliated to the Himachal Pradesh University, has contravened any provision of this Act, it may recommend to the Himachal Pradesh University for withdrawal of recognition or affiliation of such institution.” https://www.mhc.tn.gov.in/judis 47 WP.Nos.1392 and 9236 of 2022 Sub-section 6 of this provision came to be amended by the State Legislation, so as to fortify the stand of the State Government that the medical college started as a constituent of the Appellant No. 2 – University would also require affiliation from the Himachal Pradesh University. As a result, sub-section 6 came to be amended in the following terms:-
“3.Amendment of Section 3-“In Section 3 of the principal Act, for sub-section (6), the following sub- sections shall be substituted, namely:-
“(6) If, the State Government is satisfied that the institution affiliated to the Himachal Pradesh University or any other University has contravened any of the provisions of this Act, it may recommend to that University for withdrawal of recognition or affiliation of such institution.
(6a) In order to ensure common standards for maintaining the excellence of Medical Education in the State, the Himachal Pradesh University shall have the exclusive power to affiliate Private Medical Educational Institutions set up in the State; and (6b) Notwithstanding anything contained in this Act, the Private Medical Educational Institutions shall be bound to comply with all the rules, directions and notifications issued by the State Government, from time to time, and provide all such facilities and assistance as are required to implement such rules, directions and notifications”.
Along with sub-section 3, amendment was also effected to Section 2(j) of the 2006 Act by including a Private Medical Institution established by or affiliated to a private University to be a Private Medical Educational Institution. 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 https://www.mhc.tn.gov.in/judis 48 WP.Nos.1392 and 9236 of 2022 constituent college which is one of the facets of autonomy of the University. It is incomprehensible that a college which is a constituent of the Appellant No. 2 – University can be compelled to take affiliation from some other University by taking recourse to the provisions of the 2006 Act which primarily deals only with the subject of admissions and fees in private medical colleges within the State. The grant of affiliation to the college is the prerogative of the examining body. The Appellant No. 2 – University, being the examining body, has been bestowed with the authority to grant degrees and diplomas. The requirement of affiliation from another University even in respect of its constituent college, would be striking at the autonomy of the Appellant No. 2 – University and in any case beyond the purview of the subject of admissions and fixation of fee for which limited purpose the 2006 Act has been enacted.
......
40. As noted earlier, since the Appellant No.1 – College is a constituent of the Appellant No. 2 – University, the question of compelling it to take affiliation from another University (Himachal Pradesh University) cannot be countenanced.
96.In fact, in the counter filed by the State of Tamil Nadu/R3 in the writ petition before the Hon'ble Supreme Court, the respondents have taken the stand that the respective institutions will have to comply with the conditions of seat sharing and fixation of fee, and upon satisfaction of the aforesaid conditions, there would be no further impediment for the State to permit it to participate in the counselling.
97. The relevant paragraphs, paragraphs 9 and 10, read thus:
https://www.mhc.tn.gov.in/judis 49 WP.Nos.1392 and 9236 of 2022 ‘9. It is submitted that as Dhanalakshmi Srinivasan University is a private University constituted under the State Act, Tamil Nadu Private Universities Act, 2019 (Tamil Nadu Act No.14 of 2019) the State of tamil Nadu shall be allocated 65 % of MBBS seats in Srinivasan medical College and Hospital (the petitioner) which shoulf be reserved for Government Quota similar to Self Financing Medical Colleges in Tamil Nadu and 35% of MBBS seats shall be the management Quota seats based on the Tamil Nadu Admissions in Professional educational Institution Act, 2006, (Tamil Nadu Act 3 of 2007) and for both Government quota medical seats and the management quota medical seats, the college must apply to the Committee on Fixation of Fee in respect of Self-Financing Professional colleges constituted by the Government of Tamil Nadu and has toi comply with the fee structure fixed by the Committee on Fixation of Fee in respect of Self-Financing Professional colleges.
10. If the above legal mandates are complied with by the Srinivasan Medical College and Hospital (the petitioner), the State Government shall consider taking up the counselling process for filling up of seats for both Government quota medical seats and management quota seats through Selection Committee, Director of Medical Education.
98.Having stated the above before the Hon’ble Supreme Court in affidavit dated 08.12.2021, the impugned notification has come to be issued on 03.01.2022. The requirement of ‘affiliation’ with TN Dr.MGR Medical University was never a requisite and the stand of the State in the counter makes it clear that such requirement is an afterthought.
99.There are several Private Universities that have been established in the Country, some under State enactments providing for the setting up of private universities, and other under separate Acts of State. The trend, a https://www.mhc.tn.gov.in/judis 50 WP.Nos.1392 and 9236 of 2022 welcome one, heralds the era of private-public partnership in dissemination of education and can only augur well for the citizens and for the cause of social justice.
100. The question of affiliation is held in favour of the petitioner. That is to say, for purposes of clarity, that the petitioner is affiliated to the DSU, such affiliation has been accepted by the State and other regulatory bodies to be validly established, and there is thus no requirement of affiliation to any other University.
101.Now coming to the question of seat sharing, admittedly, the provisions of Section 14 of the TNPU Act provide for an all India mix of students which, to my mind, means that there should be a cosmopolitan mix of students in the University, not restricted to those drawn from the State. The settled procedure for counselling is in relation with the judgment of the Supreme Court in the case of Dar-Us-Slam Educational Trust (supra). The relevant portion of the judgment reads as follows:
..
Having heard learned counsel for the parties, as an interim measure, the following directions are issued :
1. Common Counselling for admission to All India Quota seats in Government Medical Colleges shall be conducted by the DGHS.
The counselling conducted by DGHS will also include Deemed Universities as they have an All India character. The Deemed https://www.mhc.tn.gov.in/judis 51 WP.Nos.1392 and 9236 of 2022 Universities mentioned above shall also include Deemed Universities run by religious and linguistic minorities.
2. Common Counselling for State Quota seats in Government as well as Private Medical Colleges including colleges/institutions run by religious and linguistic minorities affiliated to State Universities shall be conducted by the State Government or the authority designated by the State Government. The notification issued by the State Government intimating the students about the Common Counselling must specify that at the time of counselling the students belonging to minority community will be required to furnish the necessary proof regarding their minority status and submit in writing about their willingness to take admission in the concerned minority college/institution.
3. As per the judgment of this Hon'ble Court in the case of Ashish Ranjan vs. Union of India &Ors. [(2016) 11 SCC 225], there shall be only two rounds of common counselling each conducted by the DGHS/State Government or authority designated by the State Government for All India Quota (including Deemed University) and State Quota seats respectively.
4. After the second round of counselling for All India Quota seats, the students who take admission in All India Quota seats should not be allowed/permitted to vacate the seats. This would ensure that very few seats are reverted to the State Quota and also All India Quota seats are filed by students from the all India merit list only. The students who take admission and secure admission in Deemed Universities pursuant to the second round of counselling conducted by the DGHS shall not be eligible to participate in any other counselling.
5. The notification to be issued by the DGHS and the State Government notifying Common Counselling should also provide the fee structure of Deemed Universities and Private Medical Colleges. The DGHS/ state Government should also obtain the consent of the students regarding their willingness to pay the fees https://www.mhc.tn.gov.in/judis 52 WP.Nos.1392 and 9236 of 2022 provided in the notification and take admission in the Deemed Universities and Private Medical Colleges.
6. The students who secure admission in MBBS course pursuant to the Common Counselling conducted by the State Government, at the time of common counselling itself, should be made to deposit with the admission/counselling committee the Demand Draft towards the fees payable to the institution College/ University. The admission/counselling committee shallforthwith forward the Demand Draft to the respective Institution/Colleges/University. The necessity for including the above-mentioned requirement has arisen as it has been time and again noticed that when students report to the college after the counselling they are refused admission by the colleges on some pretext or the other and it is shown by the college as if the student never reported to the college for admission. If the Demand Draft is deposited by the admission/counselling committee then there would be no scope for colleges to refuse admission to any student.
7. In order to ascertain the number of seats that still remain vacant after the counselling the State Government or the authority designated by the State Government shall conduct manual counselling for allotment of students. After the completion counseling, the State Government shall determine the number of seats that are still vacant and thereafter shall forward a list of students in order of merit, equaling to ten times the number of vacant seats to the medical college so that in case of any stray vacancy arising in any college the said seat may be filled up from the said list.
8. In the applications submitted by the students belonging to the minority community they should confirm their minority status as well as the fact that they fulfill other conditions which may be prescribed by the minority institutions. Accordingly, the DGHS as well as the State Government shall prepare a separate list of minority students seeking admissions in the respective minority institutions in order of merit. The competent authorities of the https://www.mhc.tn.gov.in/judis 53 WP.Nos.1392 and 9236 of 2022 College present during counselling shall check/verify the minority status of the candidate. This arrangement is only meant for the State Quota.
9. During the common counselling conducted by the State Government, the representatives of the medical colleges particularly representative of minority institutions should be a part of the admission/counselling committee as the case may be.
10. Common counselling conducted by the DGHS/State Government will not in any manner affect the rights of minority institutions to admit students of their respective minority community. The minority quota seats, if any, in institutions run by minorities will be filled up by minority students only. Therefore, the rights of minority institutions are fully protected. Needless to say this arrangement will not apply to the States of Andhra Pradesh, Telangana and Jammu & Kashmir. As far as the other States are concerned, needless to say, this arrangement shall apply to all the colleges unless this Court has passed any different or separate order.
Let the matter be listed on 13.9.2017.
102. The provisions of Section 14, if read holistically, mean that out of 100 students, a minimum of 35 must be drawn from the State, and the remaining 65 those must be drawn from All India basis. The use of the phrase 'a minimum of’ in Section 14(3) supports this interpretation. The Act thus, to be applied in consonance with prevalent regulations would requires 35% of the seats to be drawn from Government quota for which the petitioner must submit itself to fee fixation and seta-sharing requirements. As regards the balance, the https://www.mhc.tn.gov.in/judis 54 WP.Nos.1392 and 9236 of 2022 central authority being the DGHS must permit the petitioner to participate in the rounds of counselling conducted by it.
103. The procedure for admission would be governed by Regulation 5A of the Graduate Medical Regulations, 1997, as they presently stand, that readas follows:
Regulations on Graduate Medical Education Amendment 2017 (1) There shall be a common counselling for admission to MBBS course in all Medical Educational Institutions on the basis of the merit list of the National Eligibility Entrance Test. (2) The Designated Authority for counseling for the 15% All India Quota seats of the contributing States and all MBBS seats of Medical Educational Institutions of the Central Government, Universities established by an Act of Parliament and the Deemed Universities shall be the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India.
(3) The counseling for admission to MBBS course in a State/Union Territory, including, Medical Educational Institutions established by the State Government, University established by an Act of State/Union Territory Legislature, Trust, Society, Minority Institutions, Municipal Bodies or a Company shall be conducted by the State/Union Territory Government.
104. Clause 1 refers to common counselling based on NEET result. Clause 2 refers to counselling for 15% of AIQ, fixing the proportion for allocation between the Central colleges and deemed universities on the one hand and State on the other, at 85:15. This clause is inapplicable to this case. https://www.mhc.tn.gov.in/judis 55 WP.Nos.1392 and 9236 of 2022
105. Clause 3 of Regulation 5A is also stated to be inapplicable to the petitioner as the respondents point out that the DSU has been established ‘under’ an Act of State whereas the regulation would apply only to a University constituted ‘by’an Act of State.
106.In the case ofDalco Engineering Private Limited (supra), three judges of the Hon’ble Supreme Court discussed the impact and possible differences in the phrases established ‘by’ and ‘under’ an enactment. The rival contentions before them were as follows:
....
14. The employee contends that a company incorporated under the Companies Act is a Corporation falling under the first category enumerated in section 2(k), that is `Corporation established by or under a Central, Provincial or State Act', on the following reasoning : that a corporation refers to a company;
that Companies Act is a Central Act; and that therefore a company incorporated and registered under the Companies Act is a Corporation established under a Central Act. He contends that the use of the words "by or under" is crucial. According to him, `a corporation established by an Act' would refer to a corporation brought into existence by an Act; and a `corporation established under an Act' would refer to a company incorporated under the Companies Act.
15. On the other hand, the employer contends that the term `Corporation established by or under a Central, Provincial or State Act' refers to a statutory Corporation which is brought into existence by a statute, or under a statute and does not include a company which is registered under the Companies Act. It is submitted that Companies Act merely facilitates and lays down the procedure for incorporation of a company which, when incorporated, will be governed by the provisions of the said Act https://www.mhc.tn.gov.in/judis 56 WP.Nos.1392 and 9236 of 2022 and therefore, a company registered under the Companies Act, is not a corporation established under an Act.
107. They then refer to their earlier Judgement in the case of S. S. Dhanoa vs. Municipal Corporation, Delhi and Others(1981 (3) SCC 431) and state thus:
18. The meaning of the term came up for consideration in S. S.Dhanoa vs. Municipal Corporation, Delhi and Ors. - 1981 (3) SCC 431 with reference to section 21 of IPC. This Court held:
"7..........Clause Twelfth does not use the words "body corporate", and the question is whether the expression "corporation" contained therein, taken in collocation of the words "established by or under a Central, Provincial or State Act" would bring within its sweep a cooperative society. Indubitably, the Cooperative Store Limited is not a corporation established by a Central or State Act. The crux of the matter is whether the word 'under' occurring in Clause Twelfth of Section 21 of the Indian Penal Code makes a difference. Does the mere act of incorporation of a body or society under a Central or a State Act make it a corporation within the meaning of Clause Twelfth of Section 21. In our opinion, the expression 'corporation' must, in the context, mean a corporation created by the Legislature and not a body or society brought into existence by an act of a group of individuals. A cooperative society is, therefore, not a corporation established by or under an Act of the Central or State Legislature.
8. A corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession, notwithstanding changes in its membership. ........ The term 'corporation' is, therefore, https://www.mhc.tn.gov.in/judis 57 WP.Nos.1392 and 9236 of 2022 wide enough to include private corporations. But, in the context of Clause Twelfth of Section 21 of the Indian Penal Code, the expression 'corporation' must be given a narrow legal connotation.
9. Corporation, in its widest sense, may mean any association of individuals entitled to act as an individual. But that certainly is not the sense in which it is used here. Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act. For example, a Municipality, a Zilla Parishad or a Gram Panchayat owes its existence and status to an Act of Legislature. On the other hand, an association of persons constituting themselves into a Company under the Companies Act or a Society under the Societies Registration Act owes its existence not to the Act of Legislature but to acts of parties though, it may owe its status as a body corporate to an Act of Legislature.
10. There is a distinction between a corporation established by or under an Act and a body incorporated under an Act. The distinction was brought out by this Court in Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi &Ors - (1975) 1 SCC 421. It was observed :
’25..........A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. There is thus a well-marked distinction between a body created by a statute and a body which, after coming into existence, is governed in accordance with the provisions of a statute." (emphasis supplied) ............
https://www.mhc.tn.gov.in/judis 58 WP.Nos.1392 and 9236 of 2022
20. A `company' is not `established' under the Companies Act. Anincorporated company does not `owe' its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a Memorandum of Association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a `company' is incorporated and registered under the Companies Act and not established under the Companies Act. Per contra, the Companies Act itself establishes the National Company Law Tribunal and National Company Law Appellate Tribunal, and those two statutory authorities owe their existence to the Companies Act.
21. Where the definition of `establishment' uses the term `a corporation established by or under an Act', the emphasis should be on the word `established' in addition to the words `by or under'. The word `established' refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between `established by a central Act' and `established under a central Act'?
22. The difference is best explained by some illustrations. A corporation is established by an Act, where the Act itself establishes the corporation. For example, Section 3 of State Bank of India Act, 1955 provides that a Bank to be called the State Bank of India shall be constituted to carry on the business of banking. Section 3 of Life Insurance Corporation Act, 1956 provides that with effect from such date as the Central Government may by notification in the Official Gazette appoint, there shall be established a https://www.mhc.tn.gov.in/judis 59 WP.Nos.1392 and 9236 of 2022 corporation called the Life Insurance Corporation of India. State Bank of India and Life Insurance Corporation of India are two examples of corporations established by "a Central Act".
108. The Court goes on to state that the use of the words ‘by’ or ‘under’ would not have any special significance in certain contexts such as in social welfare legislations where one may well be used in place of the other. Regulation 5A(3) must thus be placed in context to decide whether it is to applied stricto senso as the respondents will have me conclude, or if the words employed must be seen and understood in general terms.
109. I am of the considered view that the word ‘by’ in this case would encompass ‘under’ as well. After all, the subject matter under regulation is education and both private universities constituted ‘under’ and ‘by’ State enactments are equally placed in this regard. No specific differences are placed before me by the respondents to persuade me to decide otherwise. This issue is held in favour of the petitioner.
110.Both the Dr.MGR Medical University Act and the TNPU Act have been enacted by the State to further the cause of education including medical education, and it is for the State to ensure that they work harmoniously and similarly without impeding or transgressing into their respective fields of operation.
https://www.mhc.tn.gov.in/judis 60 WP.Nos.1392 and 9236 of 2022
111.No mechanism exists as on date, at the level of the Centre or the State to facilitate the process of AIQ counselling. This is, to say the least, unfortunate, as one of the greatest attractions in a centre of excellence is the wide and broad-based student population that it attracts.
112. Let the Central and State authorities, in consonance with the PU and the petitioner discuss and put in place a proper framework and mechanism to give effect to the provisions of Section 14. This is an exercise that must be engaged in forthwith. Mandamus is issued to all the respondents to engage in this exercise to enable the exercise of counselling and admission for AIQ to the petitioner Institution in time for the forthcoming academic year.
113. Pending writ petition, the petitioner filed yet another writ petition in W.P.No.9236 of 2022 seeking a mandamus directing the respondents to consider their representation dated 10.04.2022 and consequently include their name in the counseling process and allot candidates to the 150 MBBS seats by
(i) following the apportionment of fees followed in private self-financing medical institutions affiliated to Tamil Nadu Dr.MGR University and; (ii) by applying fee structure fixed by the State Fee Fixation Committee for private self-financing medical institutions in the State for this academic year.
114. It was thought appropriate that this writ petition must be disposed along with the earlier writ petition seeking similar relief.Pleadings were https://www.mhc.tn.gov.in/judis 61 WP.Nos.1392 and 9236 of 2022 directed to be completed and both learned Senior Counsel were heard on 22.04.2022. W.P.No.9235 was also reserved for decision on that date.
115. The prayer of the petitioner has been resisted by way of a counter filed by R2, the Additional Director of Medical Education/Secretary, Selection Committee. The resistance is on the ground that mandamus as sought for can be considered only if it fulfills the various parameters that are applicable presently such as (i) affiliation with Tamil Nadu Dr.MGR University; (ii) fixation of fee by Fee Fixation Committee; (iii) seat sharing arrangement with the State. Thus, the stand taken by the State in the present writ petition is also substantially similar to that taken in the earlier one.
116. There is no doubt that petitioner is bound by the seat arrangement in vogue as far as all colleges in the State are concerned. As for fee-fixation, as the committee has fixed the fee for all medical colleges in the State, the petitioner request’s that the same basis of fee be adopted for this college as well.
117. As regards the available time for completion of the process, the Hon’ble Apex Court has, in Ashish Ranjan and Others Vs. Union of India and Others, ((2016) 11 SCC 225) set out the time schedule for closure of applications for admissions to new under-graduate and post-graduate medical courses and this would bind the State.
https://www.mhc.tn.gov.in/judis 62 WP.Nos.1392 and 9236 of 2022
118. The last date by which student may be admitted/joined against vacancies arising on account of any reason is that 31 st of August for under graduate courses. There is thus, still time for the State to engage in this exercise. The relevant portion of the order in Ashish Ranjan (supra) is extracted below:
‘1. ........
2. In the “Regulations on Graduate Medical Education, 1997”, Appendix E shall be replaced as under:
TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE Sl.N Schedule for admission Seats to be filled up by Seats to be filled o. the Central Government by the State through the All-India Government/Insti Entrance Examination tutions
1. Conduct of entrance Between 1st to 7th May Between 10th to examination. 17th May
2. Declaration of the result By 1st June By 1st June of the qualifying exam/entrance exam.
3. 1st round of counseling/ To be over by 25th June Between 6th July admission. to 15th July
4. Last date for joining the By 5th July By 22nd July allotted college and the course.
5. 2nd round of Between 23rd July to 30th Between 10th to counseling/admission for July 22nd August vacancies.
6. Last date of joining for By 9th August By 28th August the 2nd round of counseling/ admission.
7. Commencement of 1st of August 1st of August https://www.mhc.tn.gov.in/judis 63 WP.Nos.1392 and 9236 of 2022 academic session/term.
8. Last date up to which By 31st August students can be admitted/ joined against vacancies arising due to any reason.
Note 1. – All-India quota seats remaining vacant after last date for joining i.e. 9th August will be deemed to be converted into State quota.
2.Institute/college/courses permitted after 31st May will not be considered for admission/allotment of seats for current academic year.
3.In any circumstances, last date for admission/joining will not be extended after 31st August.
119. This time schedule has obtained the stamp of approval by the Supreme Court at placitum (a) of page 233 of the SCC report as under:
2. .........
This Court gives the stamp of approval to the aforesaid schedule.
120. Thus, in the present case, the last date for completion of the admission process is still at large and available to the parties and thus there is no difficulty in compliance with this aspect of the matter qua all parties concerned.
121. My conclusions are as follows:
(i) The issue of affiliation to the TN Dr.MGR University is held in favour of the petitioner. With this, what stands in the way of allocation of the 150 seats https://www.mhc.tn.gov.in/judis 64 WP.Nos.1392 and 9236 of 2022 approved by the National Medical Commission is the seat-sharing arrangement to be arrived at between the parties as well as the fixation of fee by the Committee constituted for the purpose.
(ii) In view of the explicit direction in regard to the aforesaid two parametres by the Hon’ble Supreme Court in the cases of P.A.Inamdar(supra) and Islamic Foundation (supra), it is appropriate that the petitioner and the State engage in this exercise now. The petitioner is permitted to approach the concerned State authorities in this regard who shall, upon receipt of a request from the petitioner, convene a meeting as per the procedure normally followed and arrive at a consensual decision in regard to seat-sharing as directed by the Hon’ble Supreme Court.
(iii) As regards fee fixation, the petitioner is permitted to approach the Fee fixation committee with an application for fee fixation and the Committee is requested to consider the application and take an appropriate decision in this regard within a week from date of submission of the application.
(iv) The process of counselling shall be initiated forthwith thereafter based solely upon the list of eligible candidates furnished by the seat selection committee.
(v) The entirety of the process as above, shall be completed not later than the 15th of June 2022.
https://www.mhc.tn.gov.in/judis 65 WP.Nos.1392 and 9236 of 2022 These writ petitions are ordered accordingly. MPs closed. No costs.
29.04.2022 Index:Yes/No Speaking/non-Speaking order Ska To
1.Secretary, Union of India, Ministry of Health and Family Welfare, Room No.156-A, ‘A’ Wing, Nirman Bhavan, New Delhi 110011
2.Director General, Directorate General of Health Services Nirman Bhawan, Maula Azad Road, New Delhi 110011
3.Secretary, The National Medical Commission, Pocket-14, Section-9, Dwarka Phase-1, New Delhi-110077
4.Secretary, State of Tamil Nadu, Health and Family Welfare Department, Secretariat, Fort St. George, Chennai-600009
5.The Additional Director of Medical Education/Secretary, Selection Committee, Directorate of Medical Education, Chennai-600010
6.Member Secretary, The University Grants Commission (UGC), Bahadurshah Zafar Marg, New Delhi-110 002.
https://www.mhc.tn.gov.in/judis 66 WP.Nos.1392 and 9236 of 2022 Dr.ANITA SUMANTH, J.
Ska WP.Nos.1392 and 9236 of 2022 and WMP.Nos.1527, 1528, 8996 & 1530 of 2022 29.04.2022 https://www.mhc.tn.gov.in/judis 67