# Malay Shukla and others v. Union of India and others connected with Civil Misc. Writ Petition No. 24271 of

- **Citation:** (2005) 3 ILRA 940
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-10
- **Case number:** Civil Misc. Writ Petition No. 15504 of 2005
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/malay-shukla-and-others-v-union-of-india-and-others-connected-with-civil-misc-40523
- **Pages:** 33

## Headnote

Sri Shashi Nandan, Sri K.C. Sinha, Sri P.N.
Rai, Sri Rajeev Dhawan, Sri Vijay Bahadur
Sinha, Sri U.P. Singh, Sri V.B. Singh, Sri
B.N. Rai, Smt. Sunita Agarwal, Sri Manoj
Kumar, Sri Kapil Sibbal, Sri Akhil Sibbal,
Kirtika Singh, Sri M.A. Qadeer, Sri S.K.
Singh, S.C.

Constitution of India-Art. 29 (2)-read
with-Aligarh
Muslim
University
Act1920-reservation for admission-on the
basis of religion only-hit by art. 29(2) of
Constitution-held-illegal
without
jurisdiction.

Held: Para 60

It is declared that no reservation can be
provided
by
the
Aligarh
Muslim
University for admission of students on
the basis of religion only and any
decision in that regard, being hit by
Article 29(2) of the Constitution of India,
would be patently illegal and without
jurisdiction.

Constitution of India Art.-30- Protection
of minority institution-Aligarh Muslim
University-not within the meaning of
citizen-hence is not minority institutionheld-no right to provide reservation
based on particular religion-not entitled
to protection of Art. 30.

Held: Para 59

Although the Court has reservation with
regard to the extent of reservation
3 All] Dr. Naresh Agarwal and others V. Union of India and others
941
provided in respect of Post Graduate
Medical Courses by the Aligarh Muslim
University (i.e. 50% of the total seats) as
well as to the manner in which the said
reservation has been implemented i.e.
one
category
of
the
seats
being
completely reserved for Muslim students
(50% of the total seats required to be
filled
by
open
examination
to
be
conducted
by
the
Aligarh
Muslim
University), both the aforesaid issue are
not required to be gone into any further
inasmuch as this Court has held that
Aligarh
Muslim University is not a
minority
institution,
entitled
to
protection
of
Article
30
of
the
Constitution of India and therefore has
no right to provide any reservation on
the basis of religion. The reservation
provided by the Academic Council of the
Aligarh
Muslim
University
vide
its
resolution dated 15th January, 2005 the
resolution of the Executive Council dated
19th February, 2005 and the approval
granted by the Central Government vide
letter dated 25.2.2005 to that extent are
hit by Article 29 (2) of the Constitution
of India and as such cannot be legally
sustained.
Case law discussed:
AIR 1968 SC-662
2003 (4) SCC-399
2003 (5) SCC-298
AIR 1997 SC-3127
1996 J.T. 9 SCC-382
AIR 1993 (1) Suppl. SCC-96
1990 (3) SCC 157
2003 (ii) SCC-146
2002 (8) SCC-481
2003(6) SCC697
1996 SCC 751 (Crl.)
1969 (2) SCC-233
1989 (3) SCC-488
2005 (E.S.C.) SC- 373
2002 (7) SCC-258
AIR 1950 SC-27
AIR 1954 SC-92
AIR 1963 SC-1811
AIR 1965 SC-40
2004 (1) SC-40
2004 (1) SCC-712
1992 (1) SCC-558
2002 (8) SCC-481
1989 (3) SCC-488
1997 (4) SC-606
1996 (9) SCC-548
1969 (2) SCC-283
AIR 1997 SC-3127
2003 (5) SCC-298
2003 (4) SCC-399
2004 (1) SCC-712

## Text

_Characters 0–39,980 of 110,600. This is a partial read: ask again with offset=39980 for what follows._

940 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
defined in the IInd Schedule referred to
herein above.

The
impugned
order
dated
10.10.2005 is quashed. The District
Inspector of Schools, Ghaziabad, is
directed to forthwith pass appropriate
orders in the light of the observations
made herein above for approving the
appointment
of
the
petitioner
in
accordance with law as expeditiously as
possible preferably within a period of 3
weeks
and
to
extend
all
such
consequential benefits to which he is
entitled in accordance with law.

The writ petition is allowed. No
order as to cost.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 15504 of 2005

Naresh Agarwal Dr.

...Petitioner
Versus
Union of India and others ...Respondents
connected with
Civil Misc. Writ Petition No. 12060 of
2005
Manvendra Singh

...Petitioner
Versus
Union of India and others ...Respondents
connected with
Civil Misc. Writ Petition No. 24264 of
2005
Malay Shukla and others ...Petitioners
Versus
Union of India and others ...Respondents
connected with
Civil Misc. Writ Petition No. 24271 of
2005
Vivek Kasana and others ...Petitioners
Versus
Union of India and others ..Respondents
connected with
Civil Misc. Writ Petition No. 24274 of
2005
Anuj Gupta and others ...Petitioners
Versus
Union of India and others...Respondents

Counsel for the Petitioner:
Sri Ravi Kant
Sri J.J. Munir

Counsel for the Respondents:
Sri Shashi Nandan, Sri K.C. Sinha, Sri P.N.
Rai, Sri Rajeev Dhawan, Sri Vijay Bahadur
Sinha, Sri U.P. Singh, Sri V.B. Singh, Sri
B.N. Rai, Smt. Sunita Agarwal, Sri Manoj
Kumar, Sri Kapil Sibbal, Sri Akhil Sibbal,
Kirtika Singh, Sri M.A. Qadeer, Sri S.K.
Singh, S.C.

Constitution of India-Art. 29 (2)-read
with-Aligarh
Muslim
University
Act1920-reservation for admission-on the
basis of religion only-hit by art. 29(2) of
Constitution-held-illegal
without
jurisdiction.

Held: Para 60

It is declared that no reservation can be
provided
by
the
Aligarh
Muslim
University for admission of students on
the basis of religion only and any
decision in that regard, being hit by
Article 29(2) of the Constitution of India,
would be patently illegal and without
jurisdiction.

Constitution of India Art.-30- Protection
of minority institution-Aligarh Muslim
University-not within the meaning of
citizen-hence is not minority institutionheld-no right to provide reservation
based on particular religion-not entitled
to protection of Art. 30.

Held: Para 59

Although the Court has reservation with
regard to the extent of reservation
3 All] Dr. Naresh Agarwal and others V. Union of India and others
941
provided in respect of Post Graduate
Medical Courses by the Aligarh Muslim
University (i.e. 50% of the total seats) as
well as to the manner in which the said
reservation has been implemented i.e.
one
category
of
the
seats
being
completely reserved for Muslim students
(50% of the total seats required to be
filled
by
open
examination
to
be
conducted
by
the
Aligarh
Muslim
University), both the aforesaid issue are
not required to be gone into any further
inasmuch as this Court has held that
Aligarh
Muslim University is not a
minority
institution,
entitled
to
protection
of
Article
30
of
the
Constitution of India and therefore has
no right to provide any reservation on
the basis of religion. The reservation
provided by the Academic Council of the
Aligarh
Muslim
University
vide
its
resolution dated 15th January, 2005 the
resolution of the Executive Council dated
19th February, 2005 and the approval
granted by the Central Government vide
letter dated 25.2.2005 to that extent are
hit by Article 29 (2) of the Constitution
of India and as such cannot be legally
sustained.
Case law discussed:
AIR 1968 SC-662
2003 (4) SCC-399
2003 (5) SCC-298
AIR 1997 SC-3127
1996 J.T. 9 SCC-382
AIR 1993 (1) Suppl. SCC-96
1990 (3) SCC 157
2003 (ii) SCC-146
2002 (8) SCC-481
2003(6) SCC697
1996 SCC 751 (Crl.)
1969 (2) SCC-233
1989 (3) SCC-488
2005 (E.S.C.) SC- 373
2002 (7) SCC-258
AIR 1950 SC-27
AIR 1954 SC-92
AIR 1963 SC-1811
AIR 1965 SC-40
2004 (1) SC-40
2004 (1) SCC-712
1992 (1) SCC-558
2002 (8) SCC-481
1989 (3) SCC-488
1997 (4) SC-606
1996 (9) SCC-548
1969 (2) SCC-283
AIR 1997 SC-3127
2003 (5) SCC-298
2003 (4) SCC-399
2004 (1) SCC-712

(Delivered by Hon'ble Arun Tandon, J.)
The Dispute:

1. These five connected writ
petitions have been filed by 34 petitioners
who have obtained a degree of MBBS and
claim a right to be considered for
admission to Post Graduate Medical
Courses of Aligarh Muslim University.
For admission to Post Graduate Medical
Courses of Aligarh Muslim University
three modes have been determined (a)
25% of the total seats to be filled on the
basis of All India Entrance Examination
conducted by the All India Institute of
Medical Sciences, New Delhi, commonly
known
as
All
India
Entrance
Examination; (b) The remaining 75% of
the total seats have been divided to be
filled as follows:

(i) 25% of the total seats are
required to be filled on the basis of
entrance examination conducted by the
Aligarh Muslim University in respect of
its internal students commonly known as
Entrance
Examination
for
Internal
Candidates; and

(ii) the remaining 50% of the total
seats are to be filled from external as well
as internal candidates on the basis of
entrance examination to be conducted by
the Aligarh Muslim University. These
50% seats which are required to be filled
from
internal
as
well
as
external
candidates on the basis of entrance
942 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
examination to be conducted by the
Aligarh Muslim University have since
been reserved under resolution of the
Admission Committee/Executive Council
of Aligarh Muslim University in respect
of
Muslim
candidates
only.
The
petitioners who are Hindu by caste as
such have been deprived of their right to
participate in the process of selection for
admission to Post Graduate Courses
against 50% of the total seats, reserved for
admission through entrance examination
conducted
by
the
Aligarh
Muslim
University. This reservation of the entire
50% of the total seats to be filled on the
basis of entrance examination conducted
by the Aligarh Muslim University, has
given rise to the present writ proceedings.
The reservation so made by the Aligarh
Muslim University in favour of Muslim
candidates only on the strength of it being
a minority University entitled to the
benefit of Article 30 of the Constitution of
India is the bone of contention between
the parties to these petitions.

2. The petitioners allege that the
Hon'ble Supreme Court in the case of
Azeez Basha V. Union of India reported
in AIR 1968 SC 662 has held that Aligarh
Muslim University has been created by an
Act of Parliament and, is not a minority
institution so as to be covered under
Article 30 of the Constitution of India.
Therefore, the reservation provided in
respect of Muslim candidates as aforesaid
is wholly without jurisdiction and is even
otherwise in violation of Article 29 (2) of
the Constitution of India. It is further
contended that the amendment made in
Sections 2 (L) and 5 (2) (c) of the Aligarh
Muslim University Act 1920 vide Act No.
622 of 1981 is ultra vires the Constitution
of India, a brazen overruling of the
judgment of the Hon'ble Supreme Court
in the case of Azeez Basha (Supra) and be
declared as such.

3. Since the vires of an Act of
Parliament were questioned by means of
the present writ petitions this Court on
11.03.2005, while passing an interim
order, issued notice to the Attorney
General of India. On behalf of the
Attorney General written submission have
been filed. He has been also represented
by Sri Gopal Subramaniam, Senior
Advocate, during oral submissions. Sri
Ravi
Kant,
Senior
Advocate,
had
advanced arguments on behalf of the
petitioners. Aligarh Muslim University
has been represented by Dr. Rajiv
Dhawan, Senior Advocate, assisted by
Smt. Sunita Agarwal.

4. The Union of India as well as the
Aligarh Muslim University have taken a
stand that the provisions of the Aligarh
Muslim University Act, 1920 which were
the basis for the judgment of the Hon'ble
Supreme Court in the case of Azeez
Basha referred to above have since been
altered vide the amending Act No. 62 of
1981 with specific reference to Sections 2
(l) and 5 (2)(c), therefore, the judgment of
the Hon'ble Supreme Court in the case of
Azeez Basha (supra) is no more a good
law. Counsel for the respondents submit
that the Aligarh Muslim University was
an institution founded by the Muslims and
it has only been incorporated as a
University by the Act of 1920. There has
been no change in substance of the
original minority character of institution
by such incorporation. It is contended that
it is always open to the Parliament to
change the basis or to remove the defects
and the impediments pointed out by the
Court and to explain and clarify the
ambiguous part of the statute which has
3 All] Dr. Naresh Agarwal and others V. Union of India and others
943
resulted in a declaration of law by the
Hon'ble Supreme Court provided such
amendments are within the legislative
competence of the Parliament. In view of
the rival contentions raised by the parties
which
have
been
briefly
noticed
hereinabove the following issues arise for
determination by this Court in the present
writ petitions:-

1.
Whether
the
Aligarh
Muslim
University
is
a
minority
institution
entitled to protection under Article 30 of
the Constitution of India and therefore it
can provide for reservation of seats for
Muslim candidates only. The said issue is
to be decided with reference to the
following sub-issues:--
(i) Whether the judgment and order of the
Hon'ble Supreme Court in the case of
Azeez Basha, AIR 1968 Supreme Court
662, is no more a good law in view of the
change
effected
in
the
statutory
provisions, vide amending Act 62 of
1981?
Whether the provisions of Act 62 of 1981
especially Section 2 (1) and Section 5 (2)
are retrospective in nature and have the
effect of declaring Aligarh Muslim
University as a minority institution within
the meaning of Article 30 of the
Constitution?
2. Whether the amended Section 2 (l) and
5 (2) (c) are within the legislative
competence
of
the
Parliament
and
whether the said amendments are a brazen
attempt to over rule the judgment of the
Hon'ble Supreme Court in the case of
Azeez Basha (supra)?
3. Whether the reservation of the entire
50% seats for Muslims required to be
filled on the basis of entrance examination
to be conducted by the Aligarh Muslim
University from internal as well as
external candidates is arbitrary and
violative of Article 14 and Article 29 (2)
of the Constitution of India?
4. Whether the petitioner have any locus
to maintain the present writ petitions, and
whether
the petitions have become
infructuous in view of the subsequent
developments?

5. In order to appreciate the
aforesaid issues which arise in the present
writ petitions it would be worthwhile to
record certain basic facts leading to the
dispute.

FACTS:

6. Aligarh Muslim University was
created by legislative Act No. 21 of 1920
(hereinafter referred to as the Act of 1920.
The long title of the said Act read as
follows:-

"WHEREAS it is expedient to establish
and
incorporate
a
teaching
and
residential Muslim University at Aligarh,
and to dissolve the Societies registered
under the Societies Registration Act,
1860, which are respectively known as the
Muhammadan Anglo Oriental College,
Aligarh, and the Muslim University
Association, and to transfer to and vest in
the said University all properties and
rights of the said Societies and of the
Muslim
University
Foundation
Committee;"
Section 2 (h) of the 1920 Act defines the
University as follows:--
"(h) "University" means the Aligarh
Muslim University."
Section 5 (2) of the 1920 Act reads as
follows:--

"5. The University shall have the
following powers of the University:--
(1) .....................
944 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
(2) To promote Oriental and Islamic study
and give instruction in Muslim theology
and religion and to impart moral and
physical training;"

7. The administration of the
University was vested in officers and the
Bodies constituted under the Act itself
e.g.
Academic
Council,
Executive
Council,
Chancellor,
Pro-Chancellor,
Vice-Chancellor,
Pro-Chancellor,
Honorary
Treasurer,
Registrar
etc.
{Reference-Sections- 16 and 22 of the
Aligarh Muslim University Act.

8. By Aligarh Muslim University
Amending
Act
No.
52
of
1951
(hereinafter referred to as the 1951 Act)
and
Aligarh
Muslim
University
Amending
Act
No.
19
of
1965
(hereinafter referred to as the 1965 Act)
certain amendments were made in 1920
Act, whereby Section 9 of the 1920 Act
was deleted and Section 8 was amended.
Certain amendments were also made in
Section 13 with regard to the seat and
place of Lord Rector. Section 14 was
amended with regard to the powers of the
Visiting Board. The substantial change
was to the proviso to Section 23 (1) of the
1920 Act, which required all the members
of the Court would only be Muslims, was
deleted. Thus by the said amendments,
Non-Muslims
could
also
become
members of the Court. By amending of
Act, 1965. Sub-sections (2) and (3) of
Section 23 were deleted, as a result
whereof the Court no longer remained the
supreme
governing
body
and
by
amendments in Sections 28, 29, 34 and 38
the powers of the Executive Council were
correspondingly increased. Changes were
also made in the constitution of the
Executive
Council
with
a
specific
declaration that w.e.f. 20th day of May,
1965, every member of the Court and
Executive Council shall cease to hold
office as a member of the Court or
Executive Council, as the case may be.
This paved the way for a fresh Court and
Executive
Council
being
created.
Constitutionality of the said amendments
was subject matter of challenge before the
Hon'ble Supreme Court in the case of
Azeez
Basha
(supra).
The
said
amendments were challenged by the
members of the Muslim community
basically on the ground that Aligarh
Muslim University has been established
by a Muslim minority, any legislative
amendments incorporated vide Act of
1951 and Act of 1965, which takes away
the right of the Muslims to administer the
said educational institution would be
violative of Article 30 of the Constitution
of India. It was, therefore, claimed that
the Aligarh Muslim University being a
minority University could be administered
by the Muslims only.

9. The challenge so made in Azeez
Basha's case (supra) by the petitioners
therein was resisted by the Union of India
and a stand was taken that the Aligarh
Muslim
University
has
not
been
established by the Muslims nor they have
any right under Article 30 of the
Constitution of India to administer the
same. The Hon'ble Supreme Court after
noticing the various facts and provisions
of the 1920 Act, as well as the historical
back ground in which the Aligarh Muslim
University has been created came to the
conclusion that the Aligarh Muslim
University has been established by a
Legislative Act of Government of India.
A Central legislation has brought into
existence the Aligarh Muslim University
and it was so established. The Hon'ble
Supreme Court in no uncertain terms held
3 All] Dr. Naresh Agarwal and others V. Union of India and others
945
that the Aligarh Muslim University has
not been established by the Muslims nor
they have any right of administration. The
amendments under challenge being within
the legislative power of the Parliament
cannot be questioned on the ground that
they are violative of Article 30 of the
Constitution of India.

10. Subsequent to the said judgment
of the Hon'ble Supreme Court the
Parliament enacted the Aligarh Muslim
University Amendment Act 1981 (Act
No. 62 of 1981) whereby amongst others
the long title as well as Section 2 (l) and 5
(2) (c) and Section 23 were substituted.
The amended sections are reproduced
below:--
"2(l) "University" means ** the
educational institution of their choice
established by the Muslims of India,
which originated as the Muhammadan
Anglo-Oriental College, Aligarh and
which was subsequently incorporated as
the Aligarh Muslim University.
5 (2) (c). to promote especially the
educational and cultural advancement of
the Muslims of India;
23. The Court - (1) The Court shall
consist of the Chancellor the ProChancellor, the Vice-Chancellor and the
Pro-Vice-Chancellor (if any) for the time
being, and such other persons as may be
specified in the Statutes.
(2) The Court shall be the supreme
governing body, of the University and
shall exercise all the powers of the
University not otherwise provided for by
this Act, the Statutes, the Ordinances and
the Regulations and it shall have power to
review the acts of executive and the
Academic Councils (save where such
Councils have acted in accordance with
powers conferred on them under this Act,
the Statutes or the Ordinances).
(3) Subject to the provisions of this
Act, the Court shall exercise the following
powers and perform the following duties,
namely:-
(a) to make Statutes and to amend or
repeal the same;
(b) to consider Ordinances;
(c) to consider and pass resolutions on the
annual report, the annual accounts and the
financial estimates;
(d) to elect such persons to serve on the
authorities of the University and to
appoint
such
officers
as
may
be
prescribed by this Act or the Statutes; and
(e) to exercise such other powers and
preform such other duties as may be
conferred or imposed upon it by this Act
or the Statutes."

11. In the light of the amendments
as brought about by the Act No. 62 of
1981 the Admission Committee of the
Aligarh Muslim University in its meeting
held on 10th January, 2005 recommended
that the total seats available for Post
Graduate Medical Courses be reserved in
the manner as follows:--
(a) 25% of the total seats be reserved
for internal candidates i.e. institutional
quota;
(b) 75% of the total seats be termed
as All India quota seats to be filled as
below;
(75% All India quota seats be
bifurcated into two parts, (i) 50% of the
total seats be reserved for Muslims only
to be filled by Entrance Examination to be
conducted
by
the
Aligarh
Muslim
University, Aligarh from external as well
as internal candidates, (ii) 25% of the total
seats be left for open category to be filled
through the All India Examination to be
conducted by the All India Institute of
Medical Sciences, New Delhi.)
946 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
12. The recommendations of the
Admission Committee were considered
and accepted by the Academic Council
and Executive Council in its meetings
held on 15.01.2005 and 19.01.2005
respectively. The decision so taken, was
communicated to the Union of India by
the Registrar of the University. On
10.02.2005 the minutes of the Executive
Council, approving the reservation as
aforesaid was formally forwarded to the
Central Government. A meeting between
the Vice Chancellor and the officers of
the Ministry for Human Resources,
Government of India, took place on
21.01.2005 and 23.02.2005. The Union of
India is said to have communicated its
acceptance to the proposed reservation
vide letter dated 25.02.2005.

13. The petitioners who are Hindu
by caste were excluded from participation
in the selections for admission against
50% seats which have been reserved for
Muslims, the admission whereof was to
be done on the basis of entrance
examination to be conducted by the
Aligarh
Muslim
University.

The
reservation so provided in respect of 50%
of the total seats for Muslims, to be filled
by entrance examination to be conducted
by the Aligarh Muslim University itself
from
internal
as
well
as
external
candidates has led to the filing of the
present writ petitions before this Court.

CONTENTIONS:

14. Sri Ravi Kant, Senior Advocate,
assisted by Sri J. J. Munir Advocate on
behalf of the petitioners has contended:
(a) that Aligarh Muslim University, which
has been declared to be a non-minority
institution by the Hon'ble Supreme Court
vide its judgment in the case of Azeez
Basha (supra) could not have provided
any reservation in respect of Muslim
students only as has been done under the,
resolution of the Admission Committee
dated 10.01.2005, the resolution of
Academic Council dated 15.01.2005 and
the decision of the Executive Council
dated 19.01.2005. It is contended that
Section 2 (l) and Section 5 (2) (c) of the
amending Act have the effect of virtually
over ruling the judgment of the Hon'ble
Supreme Court in the case of Azeez
Basha (supra) which is legally not
permissible. The Hon'ble Supreme Court
has as a matter of fact recorded a finding
that Aligarh Muslim University has been
established by an Act of Legislature, and
therefore cannot be said to have been
established by the Muslim minority so as
to claim protection of Article 30 of the
Constitution of India. The finding so
recorded by the Hon'ble Supreme Court
could not have been over turned by
introducing Section 2 (l) and Section 5 (2)
(c) to the 1920 Act by Amending Act of
1981. Counsel for the petitioners points
out that the law declared by the Hon'ble
Supreme Court is binding upon one and
all throughout the country in view of
Article 141 of the Constitution of India
and it is a matter of little difference as to
whether the Aligarh Muslim University
was a party to the proceedings in the case
of Azeez Basha (supra) or not.
(b) It is further contended that the Union
of India had taken a firm stand before the
Hon'ble Supreme Court in the case of
Azeez Basha (supra) that Aligarh Muslim
University has not been established by the
Muslim minority community and that it
has been established under a legislative
Act, the institution is not entitled to the
protection
of
Article
30
of
the
Constitution of India. The Union cannot
now turn around and assert in these writ
3 All] Dr. Naresh Agarwal and others V. Union of India and others
947
proceedings that the Aligarh Muslim
University has been established by the
minority community.
(C) With reference to the judgments in the
case of People's Union for Civil
Liberties (Pucl) & another Vs. Union of
India & others, 2003 (4) SCC 399,
Bakhtawar Trust & others Vs. M.D.
Narayan & ors; 2003 (5) SCCC 298, S.
S. Bola & ors. Vs. B.D. Sardena & ors,
AIR
1997
SC
3127,
Meerut
Development Authority Vs. Satya Veer
Singh, 1996 JT 9, SCC 382, in the
matter of Cauvery Water Dispute
Tribunal, AIR 1993 (1) Suppl. SCC 96,
it is submitted that the legislative power
cannot be extended so as to over reach /
reverse the decision of the Court of law.
(d) Hon'ble Supreme Court of India in the
case of N.T. Devin Katti V. Karnataka
Public Service Commission and others
1990 (3) SCC 157 held that pending
selections would not be governed by the
subsequent amendment in the rules, there
is no question of applying new rules or
order to the pending selection.
(e) The reservation made for Muslims in
respect of the entire 50% of the total
seats, the selection whereof was to be
done through an examination to be
conducted by Aligarh Muslim University
would be hit by Article 29 (2) of the
Constitution of India. Even otherwise, the
manner in which the reservation has been
effected (i.e. 100% reservation for one
category of seats would be violative of
Article 14 of the Constitution of India.
Petitioners being fully qualified for being
considered against the aforesaid 50% of
the total seats, have every right to
maintain the present writ petition and to
insist upon the Aligarh Muslim University
to hold selection for admission against
50% seats through entrance examination
conducted
by
the
Aligarh
Muslim
University itself in accordance with law
ensuring the right of the petitioners to
participate in the said process of selection.

15. Dr. Rajiv Dhawan, Senior
Advocate, and Mr. Gopal Subramaniyam,
Senior Advocate, Supreme Court of India,
on behalf of Aligarh Muslim University
and the Union of India respectively have
raised common contentions so far as
minority status claimed by the Aligarh
Muslim University and the reservation
provided
for
Muslim
students
is
concerned, namely:

(1) The legislative competence of
Parliament to enact a law in respect of
Aligarh Muslim University is referable to
Entry 63 of List I of VIIth Schedule to the
Constitution of India and therefore the
competence of the Parliament to enact a
provision like Section 2 (l) and Section 5
(2) (c) cannot be questioned on the
ground of legislative competence. The
amending Act of 1981 has been enforced
to fulfill the fundamental rights of
Muslims, who were in minority in the
undivided country prior to independence
and in India even after independence with
specific reference to Article 30 of the
Constitution of India. Such legislations do
not create a fundamental right. They only
ensure fulfillment of the fundamental
right of the minority. The amending Act
1981 recognizes the historical fact as was
apparent from the records before the
Parliament to the effect that the Aligarh
Muslim University was established by the
Muslims and therefore the declaration in
Section 2 (l) reads with Section 5 (2) (c),
being a recognition of historical fact
which the petitioners have not been able
to demonstrate in any manner to be
arbitrary or whimsical, cannot be faulted
with. The judgment of the Hon'ble
948 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Supreme Court in the case of Azeez
Basha
(supra)
was
based
on
an
interpretation of the statutory provisions
as were then part of the Aligarh Muslim
University
Act.
The
basis
of
the
conclusion arrived at by the Hon'ble
Supreme Court having been substituted
by the Amendment Act of 1981, the
judgment in the case of Azeez Basha
(Supra) looses all force subsequent to
amendments under Act of 1981. Aligarh
Muslim University has now been rightly
recognized to have been established by a
minority community (Muslims). It is
submitted that 1920 Act was only for the
purpose of incorporation of an institution
which was established by the Muslims,
into a University. There was only a
change in the form and not in substance
by such incorporation. The Aligarh
Muslim University being an autonomous
University, is competent to lay down its
own process for admission of students
including reservation in favour of Muslim
students subject, however, to the same
being
reasonable
i.e.
within
the
parameters fixed by the Hon'ble Supreme
Court in its various judgments. It is not
necessary for the Central University to
seek
any
prior
approval
of
the
Government before providing reservation
in respect of minority students. However,
in the facts of the case the Central
Government has in fact approved the
reservation so provided by the Aligarh
Muslim
University.
As
such
the
reservation to the extent of 50% of the
total seats reserved by the Aligarh Muslim
University for Muslim students only in
respect of Post Graduate Medical Courses
cannot be said to be constitutionally
invalid in any manner. This reservation to
the extent of 50% of the total seats is in
conformity with judgment of the Hon'ble
Supreme Court in the case of Saurabh
Chaudhari and others Vs. Union of
India and others; (2003) 11 SCC 146.

16. The manner to administer is left
to the minority community. The methods
applied by the minority institutions are
usually to ensure the minority purpose by
a combination of delineating the purpose
of the institution and ensuring a presence
of the minority community on various
bodies in charge of the institution.

17. It is further submitted that the
petitioners have no locus to challenge the
reservation so provided by the Aligarh
Muslim University in respect of Muslim
candidates. Lastly it has been submitted
that the writ petitions have become
infructuous
in
view
of
subsequent
developments as well as in view of the
fact that practically all the petitioners
have either been admitted to the various
courses or they have not been found
ineligible for being admitted in any of the
courses of Aligarh Muslim University.

18. Sri Gopal Subramaniam, Senior
Advocate,
has
submitted
that
the
Amending Act of 1981 is recognition of
the historical fact that the Aligarh Muslim
University was established by Muslims
who were in minority in India at all the
relevant time. Such recognition of a
historical fact by the Amendment Act,
1981 cannot be objected to inasmuch as it
is within the legislature competence of the
Parliament with reference to Entry 63,
List-I, Schedule-VII of the Constitution of
India.
The
plenary
power
of
the
Parliament can be questioned only on the
grounds (a) that the legislature has no
competence to enact the law, (b) that the
legislation is hit by the rights guaranteed
under Part-III of the Constitution. The
legislative competence of the Parliament
3 All] Dr. Naresh Agarwal and others V. Union of India and others
949
to enact the Amendment Act of 1981 is
not in dispute. The Amendment Act, 1981
is only in furtherance of the commitment
of the State to fulfill and protect the rights
of the minority community and as such it
cannot be said to be hit by any of the
Articles contained in Part-III of the
Constitution of India.

19. The Parliament has not made
any attempt to over reach or over rule the
judgment of the Hon'ble Supreme Court
in the case of Azeez Basha (supra). The
Parliament in exercise of its legislative
power has brought the Act in tune to
recognize the historical facts. It is further
clarified that the stand taken by the
Attorney General of India in written
submissions
to
the
effect
that
no
permission of the Central Government is
required by the Central University which
is an autonomous body for providing
reservation
in
respect
of
Muslim
candidates, is based on true and correct
application of law laid down by the
Hon'ble Supreme Court in the cases of
TMA Pai Foundation Vs. State of
Karnataka; (2002) 8 SCC 481 and
Islamic Academy of Education and
another Vs. State of Karnataka and
others; (2003) 6 SCC 697, as well as in
Saurabh Chaudhari's case (Supra). The
University being autonomous body has a
right to fix the reservation quota for
students of minority community within
the permissible limits on its own.

20. In respect of the doubts that had
arisen with regard to original intention of
its founders to set up a Muslim University
large number of documents were before
the Legislature, for establishing a clear
intention of the Muslim community to
establish
a
Muslim
University
by
converting the original M.A.O. College
through
an
Act
of
incorporation.
Accordingly the Parliament subsequent to
the judgment of the Hon'ble Supreme
Court in the case of Azeez Basha (supra)
had to step in to clear the haze, which was
the basis for the judgment of the Hon'ble
Supreme Court and to declare that the
original minority character of M.A.O
College was never lost by incorporation
brought by Legislative Act for enforcing
the University Act, 1920.

21. The declaration made in that
regard by Amendment Act, 1981 cannot
be said to be based on no material so as to
categorize the amendment as a fraud on
the
legislative
powers
or
on
the
Constitution. Census of various years has
been produced before Court in support of
the plea that Muslims were in minority
not only in United Province but in the
entire country in the year 1920 when the
Aligarh
Muslim
University
was
incorporated and even today.

22. The contentions have been
formulated in five broad heads by the
Counsel for the respondents:--
(a) It is within the legislative competence
of the Parliament vide entry 63, List-I,
Schedule VII of the Constitution of India
to enact a legislation for Aligarh Muslim
University which is declared to be an
institution of national importance and
therefore the Amending Act of 1981 is
within the legislative competence of the
Parliament.
(b) By the Amending Act of 1981 the
Parliament has changed the basis on
which the previous decision of the
Hon'ble Supreme Court was founded. The
change so effected cannot be termed as
usurption of the judicial powers. The
Amendment Act has the effect of
removing the ambiguity and curing the
950 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
defects as were noticed in the earlier
judgment of the Hon'ble Supreme Court
in the case of Azeez Basha (supra). Such
amendment being within the legislative
competence of the Parliament cannot be
said to be a brazen overruling of the
judgment of the Hon'ble Supreme Court
by the legislature which is prohibited.
(c) The Parliament has fulfilled its
obligation to protect fundamental right
and has only
given
effect to its
constitutional
duty
to
protect
the
fundamental
rights
of
the
minority
community by recognizing the fact that
Aligarh Muslim University has been
established
by
the
Muslims.
The
Parliament has only declared the doubts,
which had arisen because of the language
of the earlier Act. There is no impediment
for the Parliament to give due recognition
to the fundamental rights of the minority
community, specifically if the Parliament
feels that there has been a deprivation of
such a right by an Act of the Parliament
itself. In support of the contention the
counsel
for
the
Aligarh
Muslim
University has placed reliance upon the
judgments of the Hon'ble Supreme Court
in the cases of State of U.P. Vs. Zalim &
ors.; 1996 SCC 751 (Crl.7), Bakhtawar
Trust (Supra) and Shri Prithvi Cotton
Mills
Ltd.
Vs.
Broach
Borough
Municipality 1969(2) SCC 233.
(d) The Amending Act of 1981 is a
declaratory statute, retrospective in nature
it has removed or cured the defects which
were noticed in the earlier legislation,
subject matter of consideration in the case
of Azeez Basha. Because of the curative
action of the competent legislature the
earlier judgment becomes inoperative and
unenforceable. (reference Ujagar Prints II
Vs. Union of India & ors.; (1989) 3 SCC
488).
(e) Once it is established that Aligarh
Muslim University has been established
by a minority community, the right to
administer the same is vested in the
minority community. In support thereof it
is contended that there can be no waiver
of the right of administration. Mere nonperformance or the defeasance of the right
will not waive the right and the minority
community can claim at any point of time,
such right of administration, so long as
the establishment of the institution by the
minority community is established.
(f) Aligarh Muslim University being a
Muslim minority institution has a right to
provide quota in respect of students of its
own community. Such a right has been
recognized
by
Constitution
Bench
Judgment of the Hon'ble Supreme Court
in the cases of TMA Pai (Supra) and St.
Stephen's College Vs. University of Delhi;
(1992) SCC 558.
(g) The Aligarh Muslim University has
taken a well reasoned decision in respect
of reservation of seats for Muslims in Post
Graduate
Courses
which
has
since
received acceptance by the Union of India
as per letter dated 25.02.2000. In the latest
judgment of the Hon'ble Supreme Court
in the case of P.A. Inamdar and others v.
State of Maharashtra and others; 2005(3)
ESC (S.C.) 373 it has been further
clarified that admissions in minority
institutions should reflect its minority
character which may be jeopardized if
they do not do so.
(h) Lastly it is submitted that the
petitioners have no locus to maintain the
present writ petition inasmuch as the
petitioners
are
not
entitled
to
be
considered against 50% quota seats which
are reserved for Muslim candidates as
they do not belong to the particular
minority community. The open category
seats which were subject matter of
3 All] Dr. Naresh Agarwal and others V. Union of India and others
951
admission
under
the
Entrance
Examination held by the All India
Institute of Medical Sciences have gone
unfilled and the petitioners could not
compete
in
the
said
Entrance
Examination. Further in view of the
judgment of the Hon'ble Supreme Court
in the case of Medical Council of India
Vs. Madhu Singh & ors.; (2002) 7 SCC
258 since the admission process has to be
completed by a particular date no
effective relief can be granted to the
petitioners at such a belated stage. It is,
therefore, submitted that the writ petition
may be dismissed.

23.

On
behalf
of
National
Commission for Minority Educational
Institutions intervention application has
been filed. Sri Vijai Bahadur Singh,
Senior Advocate, assisted by Sri U. P.
Singh Advocate has been heard on behalf
of the Intervener. The counsel for the
National
Commission
for
Minority
Educational
Institutions
(hereinafter
referred to as the Commission) after
referring to the historical back ground in
which the said Commission has been
established, has made reference to facts
leading to establishment of the University
as well as to various provisions of the
Aligarh Muslim University Act. His
submissions are to the same effect as have
been raised in detail by Senior Advocates
appearing for the University and the
Union of India, therefore, it is not
necessary to reiterate the same all over
again.

24.

Before
adverting
to
the
consideration of the issues raised by the
contesting parties it would be in the
interest of justice that the Constitutional
provisions and legal principles on which
the
present
writ
petitions
require
consideration by this Court may be stated.

Constitutional
Scheme
and
Legal
Principles:

25. The preamble of the Constitution
of India indicates the objective of the
founding fathers who claim to speak on
behalf of the people of India. The word
"Secular" and "Socialist" were inserted by
42nd Constitutional Amendment in the
preamble of the Constitution of India.
India is a country of secular people living
together.
The
people
of
India
in
delegating
legislature,
executive
and
judiciary their respective powers retained
for themselves certain rights termed as
fundamental rights, which are paramount
to the delegated powers. Reference may
be had to the judgment of the Hon'ble
Supreme Court of India in the case of
A.K. Gopalan v. State of Madras;
reported in AIR 1950 SC 27, wherein it
has been said that "it is true to say "that in
a sense the people delegated to the
legislative, executive and the judicial
organs of the State, there respective
powers while reserving to themselves the
fundamental rights, which they made
paramount by providing that the State
shall not make any law, which takes away
or abridges the rights conferred by that
part."

26. In the case of State of West
Bengal v. Subodh Gopal Bose; reported in
AIR 1954 SC 92 it has been declared that
Fundamental rights are natural basic
rights
which
are
recognized
and
guaranteed as natural rights inherent in
the status of a citizen of a free country.

Part-III of the Constitution of India
with
subtitle
"Fundamental
Rights"
952 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
contains Article 12 to Article 35. Such
rights are guaranteed against State action,
which in turn includes the Parliament and
State Legislature as well as other
instrumentalities of the State (Reference
Article 12 of the Constitution of India).
Any law made in violation of fundamental
rights would be null and void (Reference
Article 13 of the Constitution of India).

27. There is a broad distinction
between fundamental rights guaranteed by
the Constitution and those rights which
are guaranteed by a Statute. If the Statute
deals with the right, which is not
fundamental in character, the Statute can
take it away but the Statute cannot take
away a fundamental right. Reference- M/s
Pannalal Binjraj and others v.