JUDGMENT Tarlok Singh Chauhan 1. The petitioner is a private University established in the State of Himachal Pradesh as per Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010 (in short ‘Act of 2010’) enacted by the State of Himachal Pradesh and received the assent of the Governor on 15.09.2010. The establishment of the petitioner has been approved by the Medical Council of India (‘MCI’) and it is averred that it is the only private University which is offering MBBS course for the academic year 2015-2016 and it, therefore, be permitted to admit students on the basis of the written test to be conducted by it on the basis of merit as provided under the Act of 2010. 2. The petitioner has taken exception to the notification dated 26.9.2014, whereby the respondents have notified that admission criteria in technical/non-technical/professional/ non-professional courses for the academic session 2015-16 in various private Universities shall be on the basis of National Common Entrance Test. It is averred that this violates its right to administer its educational institution and thus is violative of Article 19(1)(g) of the Constitution of India, more especifically when it is a totally unaided educational institution. It is further averred that there is no specific provision under the Indian Medical Council Act, 1956 which may authorize it to direct that the admissions shall be made on the basis of Common National Eligibility-cum-Entrance Test and even if such condition exists, the same would not apply to the petitioner, as this would amount to imposing unreasonable restrictions on the right of the petitioner to administer its educational institution. 3. In response to the petition, the respondents in their reply have stated that Section 31 of the Act of 2010 only provides for admission to the University for Non-Medical Course and does not deal with admissions to the medical institutions of the Universities which in turn are governed by the H.P. Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 (in short ‘Act of 2006’). The Government had conveyed its approval on 29.08.2012 to issue ‘No Objection Certificate’ and ‘Essentiality Certificate’ to the petitioner subject to the condition that the institution would abide by the guidelines/terms issued by the Medical Council of India and State Government and the admission, fee structure and related issues shall be governed by the Act of 2006. The Government had conveyed its approval on 29.08.2012 to issue ‘No Objection Certificate’ and ‘Essentiality Certificate’ to the petitioner subject to the condition that the institution would abide by the guidelines/terms issued by the Medical Council of India and State Government and the admission, fee structure and related issues shall be governed by the Act of 2006. It was further provided that the eligibility criteria for admission shall be such as may be determined and notified by the State Government from time to time and, therefore, once it was decided that the admission shall be made on the basis of the Common Entrance Test in accordance with the merit, then no deviation in the said procedure is permissible and the petitioner will have to abide by such condition. We have heard learned counsel for the parties and have gone through the records of the case. 4. At the outset it may be observed that identical issue came up for consideration before this Court in H.P. Private Universities Management Association vs. State of H.P. and others, decided on 23rd July, 2014, CWP No. 7688 of 2013, wherein 16 private Universities had questioned the competence of the State Government to regulate admissions in professional colleges and this Court upheld the stand of the State Government and held that the State had the authority to regulate the conduct of admissions as this would ensure that the admissions are based on merits. It was further held that no doubt the notification issued by the State directing the filling up of seats on the basis of the Common Entrance Test may have some effect on the autonomy of the private unaided institutions, but that would not mean that their freedom under Article 19(1) (g) of the Constitution has in any manner been violated. It was also held that the freedom contemplated under Article 19(1)(g) does not imply or even suggest that the State cannot regulate educational intuitions in the larger public interest. This Court further held that the autonomy granted to the private unaided institutions cannot restrict the State’s authority and duty to regulate academic standards. 5. Notably, this judgment has attained finality, as the SLP preferred against the same was dismissed by the Hon’ble Supreme Court vide its order dated 21.11.2014. 6. This Court further held that the autonomy granted to the private unaided institutions cannot restrict the State’s authority and duty to regulate academic standards. 5. Notably, this judgment has attained finality, as the SLP preferred against the same was dismissed by the Hon’ble Supreme Court vide its order dated 21.11.2014. 6. The learned Senior Counsel for the petitioner would vehemently argue that in view of Section 31 Maharishi Markandeshwar University (Establishment & Regulation) Act, 2010, it is free to make admissions by conducting its own exams, though strictly in accordance with order of merit. 7. This issue too is no longer res integra in view of the judgment rendered by this Bench in CWP No. 6664 of 2014 decided on 01.04.2015, titled Dheeraj versus Maharishi Markandeshwar University and another, which case in fact related to the petitioner University. The petitioner therein had sought admission to the University on the basis that instructions of the State Government as issued vide letter dated 5.9.2014 should be quashed, as it had no power to issue such directions in view of Section 31 of the Maharishi Markandeshwar University (Establishment & Regulation) Act, 2010, under which it had been established. 8. This Court reiterated its earlier view taken in H.P. Private Universities Management case (supra) and recognized the competence of the State Government to issue instructions and regulate admissions in the petitioner University and it was held:- “7. Admittedly, the respondent No.1-University is a private University established under H.P. Government Act No. 22 of 2010 and approved under Section 22 of the UGC Act, 1956. Under Section 31 of the Maharishi Markandeshwar University (Establishment & Regulation) Act, 2010, it has been provided as under: “31. (1). Admissions in the University shall be made strictly on the basis of merit. (2) Merit for admission in the University may be determined either on the basis of marks or grade obtained in the qualifying examination for admission and achievements in co-curricular and extra-curricular activities or on the basis of marks or grade obtained in the entrance test conducted at State level either by an association of the Universities conducting similar course or by any agency of the State. Provided that admission in professional and technical courses shall be made only through entrance test. Provided that admission in professional and technical courses shall be made only through entrance test. (3) Seats for admission in the University for the students belonging to SC,ST and OBC and handicapped students, shall be reserved as per the policy of the State Government. (4) At least 25% seats for admission to each course shall be reserved for students who are bonafide Himachalis.” 8. Once a mode of making admissions has been prescribed under Section 31 of the Act ibid, then no provision of the rules, byelaws, regulations or even the prospectus which provide anything contrary to the provisions of Section 31 can prevail. It is settled law that an Act will prevail over the rules, byelaws, regulations and even the prospectus. 12. The State Government has clearly observed in its letter dated 6.9.2014 (Annexure R-4) that the provisions of the prospectus wherein it was stipulated that if the requisite number of AIPMT qualified candidates are not available, the resultant vacant seats will be filled up from the candidates on the basis of qualifying examination was contrary not only to the provisions of Section 31 of the Act but also to the MCI guidelines. 13. Now insofar as the question regarding competence of the State Government to issue instructions and regulate admissions in private University is concerned, this issue is no longer res integra in view of the judgment passed by this Bench in H.P. Private Universities Management Association vs. State of H.P. and others, decided on 23rd July, 2014, CWP No. 7688 of 2013, wherein as many as 16 private Universities had questioned the competence of the State Government to regulate admissions in professional colleges and this Court held as follows: “20. In view of the various pronouncements of the Hon’ble Supreme Court, it can safely be concluded that in a right to establish an institution, inherent is the right to administer the same which is protected as part of the freedom of occupation under Article 19 (1) (g). Equally, at the same time, it has to be remembered that this right is not a business or a trade, given solely for the profit making since the establishment of educational institutions bears a clear charitable purpose. Equally, at the same time, it has to be remembered that this right is not a business or a trade, given solely for the profit making since the establishment of educational institutions bears a clear charitable purpose. The establishment of these institutions has a direct relation with the public interest in creating such institutions because this relationship between the public interest and private freedom determines the nature of public controls which can be permitted to be “permissible”. Even the petitioners concede that they have established the institutions to ensure good quality education and would not permit the standard of excellence to fall below the standard as may be prescribed by the State Government. The petitioners also conceded that the State makes it mandatory for them to maintain the standard of excellence in professional institutions. Thus, ensuring that admissions policies are based on merit, it is crucial for the State to act as a regulator. No doubt, this may have some effect on the autonomy of the private unaided institution but that would not mean that their freedom under Article 19 (1) (g) has in any manner been violated. The freedom contemplated under Article 19 (1) (g) does not imply or even suggest that the State cannot regulate educational institutions in the larger public interest nor it be suggested that under Article 19 (1) (g), only insignificant and trivial matters can be regulated by the State. Therefore, what clearly emerges is that the autonomy granted to private unaided institutions cannot restrict the State’s authority and duty to regulate academic standards. On the other hand, it must be taken to be equally settled that the State’s authority cannot obliterate or unduly compromise these institutions’ autonomy. In fact it is in matters of ensuring academic standards that the balance necessarily tilts in favour of the State taking into consideration the public interest and the responsibility of the State to ensure the maintenance of higher standards of education. 23. The State has power to regulate academic excellence particularly in matters of admissions to the institutions and, therefore, is competent to prescribe merit based admission processes for creating uniform admission process through CET. 23. The State has power to regulate academic excellence particularly in matters of admissions to the institutions and, therefore, is competent to prescribe merit based admission processes for creating uniform admission process through CET. Any prayer for seeking dilution or even questioning the authority of the State to act an regulator is totally ill-founded in view of the various judicial pronouncements, particularly in Visveswaraiah Technological University (supra) and reiterated in Mahatma Gandhi University (supra).” The judgment passed by this Court has attained finality inasmuch as the SLP preferred against this judgment has been dismissed by the Hon’ble Supreme Court on 21.11.2014.” 9. At this stage, we may also notice that the State Government vide letter dated 29.8.2012 had issued the ‘Essentiality and Feasibility Certificate/No Objection Certificate’, but subject to certain terms and conditions, which include:- “1. The Institution concerned will have to abide by the guidelines/terms issued by the Medical Council of India and State Government; 2. The admission, fee structure and related issues shall be governed as per “The H.P. Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006”. 10. Undoubtedly, the petitioner is an University established under a statute, but it cannot fall back on a self serving provision of its statute to claim a right of admission, which is in violation of the H.P. Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 and against the “Essentiality and Feasibility Certificate/No Objection Certificate” issued vide letter dated 29.8.2012. 11. Moreover, even if the provisions of Section 31 of the Act are taken into consideration, then the proviso appended thereto makes it absolutely clear that the same has no application to admissions in professional and technical courses which can be made only through entrance test and the same reads thus: “Provided that admission in professional and technical courses shall be made only through entrance test.” 12. Indisputably, the petitioner institution has been established and is governed by the instructions issued by the Medical Council of India and the relevant provision as contained in clause 5 thereof reads thus:- “5. Indisputably, the petitioner institution has been established and is governed by the instructions issued by the Medical Council of India and the relevant provision as contained in clause 5 thereof reads thus:- “5. Selection of students: the selection of students to Medical College shall be based solely on merit of the candidate and for determination of the merit, the following criteria be adopted uniformally throughout the country; (1) In States having only one Medical College and one University/Board/Examining body conducting the qualifying examination, the marks obtained in such qualifying examination may be taken into consideration; (2) In States having more than one University/Board/Examining Body conducting the qualifying examination (or where there is more than one Medical College under the administrative control of one authority) a competitive Entrance Examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducted by different agencies; (3) Where there are more than one College in a State and only one University/Board conducting the qualifying examination, then a joint selection Board be constituted for all the colleges; (4) A competitive entrance examination is absolutely necessary in the case of institution of all India character.” 13. The aforesaid clause makes its abundantly clear that an entrance exam is absolutely necessary in case the institution is of all India character and therefore, no exception to the same can be taken, because there can be no better system of adjudging merit than an exam conducted by the Centralized Agency, that too on all India basis, wherein a common level playing field is available to all the candidates and the admission is further based on an uniform process. 14. The learned Senior Counsel for the petitioner would then argue that the instructions and guidelines issued by the respondents could at the best be imposed and applied to the seats falling under the State quota and it had no authority to impose any restriction on the seats falling to the share of the Management. 15. We are afraid that even this contention of the petitioner cannot be acceded to as there cannot be two different modes of admissions for the same course or else the same would per se be discriminatory. 16. In view of the aforesaid discussion, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. 16. In view of the aforesaid discussion, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.