# / v. Malay Shukla and another

- **Citation:** (2006) 1 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-12-22
- **Case number:** Special Appeal No.1321 of 2005
- **Bench:** Ajoy Nath Ray, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-malay-shukla-and-another-40798
- **Pages:** 63

## Headnote

Sri Gopal Subramaniam
Sri Ravi Kant
Sri J.J. Munir
Sri Arvind Srivastava
Sri Ravindra Srivastava
Sri S.G. Hasnain

(A) Constitution of India Art.-30-Minority
Institution-established
by
minoritynever administered on claimed to be
administered-can not be clothed as
minority Institution.

Held: Para 52, 97,120, 140

The consequence therefore is, that the
Court cannot stop from giving effect to
the consequence of 2 (l). What is this
consequence? The consequence is that
Aligarh Muslim University becomes a
minority institution. Is it a remote
consequence? Not at all. Is it a direct
consequence? Most certainly yes. Is it an
proximate consequence? The answer is
that it is so proximate that it is hardly
possible
to
call
it
even
a
mere
consequence of S. 2 (l); it was as if
Parliament had said the Aligarh Muslim
University is a minority institution, full
stop.

The main issue arose in Azeez Basha's
case was as to whether the Aligarh
Muslim
University
is
a
minority
institution entitled for protection under
Article 30. The Apex Court held that
Aligarh Muslim University was neither
established nor administered by muslim
minority, hence the challenge to the
aforesaid 1951 and 1965 Acts as ultra
vires to Article 30 is unfounded. For
purposes of this case it is necessary to
know as to what is the basis of Azeez
Basha's judgment in holding that Aligarh
Muslim University is not a minority
institution.
In
Azeez
Basha's
case
(supra) the Apex Court considered the
entire scheme of 1920 Act and the
Statutes and also the previous history
and after analysing the same it was held
that Aligarh Muslim University is not a
minority
institution
entitled
for
protection under Article 30.

Thus it cannot be held that whenever a
member of the minority community
establish an institution the same shall be
necessarily
a
minority
institution
irrespective of the fact as to whether it
was contemplated to be a minority
institution or an institution for the
benefit of all sections of the society. This
can be further illustrated by giving an
illustration. A member of the minority
community establishes an institution
which is open to all sections of the
society without reserving any right of
administration in the persons founding
the
society.
The
institution
is
administered as a normal institution
following
the
rules
and
regulations
applicable to normal institution. The
selection
of
teachers
is
made
by
selection board established under the
Act. Can after lapse of several decades
suddenly the institution claim to the
benefit of minority character on the
ground
that
it was
established
by
minority member and claim right of
administration of the ins

## Text

_Characters 0–39,966 of 209,745. This is a partial read: ask again with offset=39966 for what follows._

1 All] The Aligar Muslim University, Aligarh V. Malay Shukla and another
13
required the services of the petitioner's
father continuously since 1987 to 1999 is
indicative of the fact that the requirement
was of a perpetual and regular nature. It is
not the case of the respondents that the
work of tube well operators no more
exists. It has also not been pleaded that
such tube well operators are no more
required. On a vacancy which may occur
of a part time tube well operator the tube
well still has to be operated, therefore, the
nature of work is existing day to day and
the respondents have taken the services of
the petitioner's father due to existence of
work since 1987 continuously. During
this period of nearly 12 years the salary
has been disbursed by the respondents
month to month. The nature of work
required
to
be
performed
by
the
petitioner's father was of a regular nature
as is apparent from a reading of the
appointment letter dated 20.5.92 wherein
the duties of the petitioner have been
prescribed. It is also not disputed by the
learned Standing Counsel that the part
time tube well operators are being paid
the same salary as regularly appointed
tube well operators on the principle of
'equal pay for equal work'. The duties,
qualifications and hours of working of
part time tube well operators and regular
tube well operators are identical has been
held by this court and the Hon'ble
Supreme Court in SLP (C) No. 16219 of
1994 decided on 22.3.1995.

14. For the aforesaid reasons and the
facts of this case it is concluded that the
Government Order dated 26.10.1998
would not be applicable in the present
case in as much as the petitioner's father
would come under the definition of
'Government Servant' as defined under
Rule 2 (a) (iii) of the Rules for the
purpose of appointment of his dependants
on compassionate grounds.

15. Consequently the writ petition
deserves to be allowed. The impugned
orders dated 25.1.2000 and 29.1.2000
passed by the respondent no. 2 and no. 3
respectively are quashed. The matter is
remitted back to the respondent no. 2 to
re-consider the petitioner's application
dated 29.12.99 under the Dying in
Harness Rules 1974. The respondents no.
2 will take a decision on the same after
giving full opportunity to the petitioner
within three months from the date of a
certified copy of this order is produced
before him.

16. The writ petition is allowed. No
order is passed as to costs.

Petition Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: 22.12.2005 AND 05.01.2006

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No.1321 of 2005

The Aligarh Muslim University, Aligarh

 ...Appellant/Respondent
Versus
Malay Shukla and another

 ...Respondent/Petitioner

Connected with:

Special Appeal Nos.1322 of 2005, 1323 of
2005, 1324 of 2005, 1327 of 2005, 1346
of 2005, 1347 of 2005, 1348 of 2005,
1395 of 2005, 1397 of 2005, 679 of 2005,
680 of 2005, 681 of 2005, 682 of 2005,
728 of 2005, 747 of 2005, 748 of 2005,
14 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
749 of 2005, 750 of 2005, 751 of 2005,
1396 of 2005 and 1320 of 2005.

Counsel for the Appellant:
Sri V.B. Singh
Smt. Sunita Agarwal
Sri Dr. Rajeev Dhavan
Sri Ashok Khare
Sri S.A. Shah

Counsel for the Respondents:
Sri Gopal Subramaniam
Sri Ravi Kant
Sri J.J. Munir
Sri Arvind Srivastava
Sri Ravindra Srivastava
Sri S.G. Hasnain

(A) Constitution of India Art.-30-Minority
Institution-established
by
minoritynever administered on claimed to be
administered-can not be clothed as
minority Institution.

Held: Para 52, 97,120, 140

The consequence therefore is, that the
Court cannot stop from giving effect to
the consequence of 2 (l). What is this
consequence? The consequence is that
Aligarh Muslim University becomes a
minority institution. Is it a remote
consequence? Not at all. Is it a direct
consequence? Most certainly yes. Is it an
proximate consequence? The answer is
that it is so proximate that it is hardly
possible
to
call
it
even
a
mere
consequence of S. 2 (l); it was as if
Parliament had said the Aligarh Muslim
University is a minority institution, full
stop.

The main issue arose in Azeez Basha's
case was as to whether the Aligarh
Muslim
University
is
a
minority
institution entitled for protection under
Article 30. The Apex Court held that
Aligarh Muslim University was neither
established nor administered by muslim
minority, hence the challenge to the
aforesaid 1951 and 1965 Acts as ultra
vires to Article 30 is unfounded. For
purposes of this case it is necessary to
know as to what is the basis of Azeez
Basha's judgment in holding that Aligarh
Muslim University is not a minority
institution.
In
Azeez
Basha's
case
(supra) the Apex Court considered the
entire scheme of 1920 Act and the
Statutes and also the previous history
and after analysing the same it was held
that Aligarh Muslim University is not a
minority
institution
entitled
for
protection under Article 30.

Thus it cannot be held that whenever a
member of the minority community
establish an institution the same shall be
necessarily
a
minority
institution
irrespective of the fact as to whether it
was contemplated to be a minority
institution or an institution for the
benefit of all sections of the society. This
can be further illustrated by giving an
illustration. A member of the minority
community establishes an institution
which is open to all sections of the
society without reserving any right of
administration in the persons founding
the
society.
The
institution
is
administered as a normal institution
following
the
rules
and
regulations
applicable to normal institution. The
selection
of
teachers
is
made
by
selection board established under the
Act. Can after lapse of several decades
suddenly the institution claim to the
benefit of minority character on the
ground
that
it was
established
by
minority member and claim right of
administration of the institution as a
minority. The answer will be obviously
no
because
the
character
of
the
institution which came into existence
was
not
a
minority
nor
it
was
administered by minority. The right of all
citizens
to
administer
educational
institution under Article 19 (1)(g) has
also been recognised by the Apex Court
in T.M.A. Pai's case. Following was laid
down in paragraph 18 of the judgment:-
1 All] The Aligar Muslim University, Aligarh V. Malay Shukla and another
15
We are thus in full agreement with the
view of learned single Judge that the
basis
of
judgment
in
so
far
as
establishment part is concerned was also
not completely changed by 1981 Act so
as to make the Azeez Basha's judgment
ineffective. Thus in the establishment of
the University the then government had
its significant role and the establishment
was not entirely the act of minority
community.

(B) Constitution of India Art. 226-Writ
jurisdiction-Locustandi petitioners have
passed M.B.B.S.-challenging the policy of
reservation of 50% Quota for candidates
belonging to minority-adversely effected
their chance to seek admission-heldpetitioner have locus to filed the writ
petition.

Held: Para 147, 76

The admission policy in so far it reserves
50% muslim quota was being challenged
by the petitioners and the petitioners
having passed the MBBS has right to
challenge the policy of the institution
which adversely effected their chance to
seek admission in the year in question
and even in future years. We are not
convinced
with
the
submission
of
counsel of Aligarh Muslim University that
the writ petitioners have no locus to file
the writ petition.

We are unable to dislodge the students,
who are studying and we are aware that
this will have to be at the cost of the
cross appellants, who are 34 in number.
Dr. Dhawan was at pains to show how
only a few of them might still, in any
event, be said to somewhat aggrieved,
but we are of the opinion that it will not
serve any useful purpose to enter into
these details now, as we cannot grant
them much relief. Even the locus standi
of the students was challenged at first,
but the issue of locus is such a narrow
one that it would be impossible to say
that none of the cross appellants had in
any view of the matter any legal locus
standi to challenge the Muslim quota.
Locus on the part of the Minority
Commission and the Union of India was
also challenged by the cross appellants
in their turn. We have found these
objections to be not worthy of detailed,
or even any, discussion in a heavy
weight constitutional matter like this.
Case law discussed:
1969 (2) SCC-283
1989 (3) SCC-488
1997 (8) SCC-522
1996 (7) SCC-637
2004(12) SCC-588
1976 (4) SCC-750
1952 Appeal cases-109
AIR 1968 SC 662
1993 (Suppl.) SCC (1)-96
1969 (2) SCC-283
2003 (5) SCC-298
2004 (1) SCC-712
1966 (7) SCC-637
2002 (8) SCC-481
2000 (7) SCC-253
2005 (2) SCC-65
2002 (6) SCC-127

(Delivered by Hon'ble Ajoy Nath Ray, CJ.)

1. The short basic issue in all these
appeals is whether the Aligarh Muslim
University is a minority Institution. The
point arises because suddenly some eighty
five years after incorporation, they chose
for the first time to reserve a Muslim
quota, by way of a 50% reservation of
post-graduate course seats meant for
qualified MBBS doctors. The judgment
under appeal before us has been delivered
by an Hon'ble Single Judge of our Court
on the 4th of October, 2005. Both sides,
to be more accurate, all parties, felt
aggrieved, and came up in appeal. The
appeals will all be disposed of by this
common order.

2. On the one side, who spoke first,
were the Aligarh Muslim University,
represented by Mr. S.S. Ray, leading Dr.
Dhawan, the Union of India and the
16 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
learned Attorney General on whose behalf
Mr. Gopal Subramaniam addressed us,
two individuals one of whom is a member
of the Court of the University, which is its
administrative
body,
the
Minority
Commission whose case was put forward
by Mr. Ravindra Srivastava, and groups
of Muslim students, admitted on quota,
represented by two learned counsel one of
whom was Mr. Ashok Khare and another
Mr. S.A. Shah.

3. On the other side were certain
dissatisfied students whose case was put
forward by Mr. Ravi Kant. Before we
proceed any further, we make it clear that
in spite of the most elaborate expertise
and painstaking arguments on the part of
the University and its supporters, we felt
so utterly unconvinced that Mr. Ravi Kant
was called upon to speak for about two
hours whereas the other side had amongst
themselves addressed us for some five
days
or
so.
Those
hearings
were
substantially full day hearings.

4. Although we cannot say the same
thing about the various reasons given by
Hon'ble the Single Judge and the orders
passed by his Lordship, we have no
hesitation in upholding his Lordship's
main and primary decision in these
matters, which is that Basha still holds the
field and the 1981 Act must give way
before it wherever the two come in
conflict.

5. Basha is the case of Azeez Basha,
a Five Judge Bench decision of the
Supreme Court and the report of the case
will be found at AIR 1968 S.C. 662. It
ruled that the University is not a minority
institution.

6. The 1981 Act is an Act of our
Parliament, No.62 of 1981 being Aligarh
Muslim University (Amendment Act
1981), which received assent of the
President of India on the 31st December,
1981 and was published thereafter on the
same day.

7. In Basha, the Court spoke
through the Hon'ble then Chief Justice
K.N. Wanchoo; it is a decision running to
about 12 pages of the All India Reporter.

8. That case has to be read by any
reader of this judgment before proceeding
any further herewith. On the simple
principle of following higher and binding
authorities, we have to give this case full
and complete effect and none of the
statements in this case can be discounted
by us. It would be wrong for us to quote
the case fully here and it would be a
wholly unnecessary and unusual exercise;
but the case should be treated as quoted
herein fully and we must be understood
hereafter as bearing in our minds all the
time the basic and first principle that we
in this Bench are forbidden to look behind
the decision of a five Judge Bench of the
Supreme Court of India.

9. The problem before us arose
because Parliament, an equally binding
source of law so far as we are concerned,
chose to pass the amending Act of 1981
which, according to appellants, (by the
appellants hereafter we shall mean the
University and its supporters; we shall
refer
to
the
aggrieved
non-Muslim
students as the cross-appellants hereafter),
the said Act of 1981 changed the basis of
Basha and that too to such an extent that
today, we as the appropriate pronouncing
authority must pronounce the Aligarh
Muslim
University
as
a
minority
1 All] The Aligar Muslim University, Aligarh V. Malay Shukla and another
17
Institution,
the
Basha
case
notwithstanding.

10. The task before the Hon'ble
Single Judge was, and before us also is, to
see whether the 1981 Act so altered the
basis of the Basha case, legally and
validly, as substantially to convert the
Aligarh
Muslim
University
into
a
minority Institution because, and only
because, of the said amendment Act, or
whether, if the Act by its words had
succeeded in purporting to achieve that
object,
it,
by
that
very
reason,
transgressed the permitted authority and
limit of Parliament, which cannot, simply
like a superior Court, overrule the
decision given by any Court of law, least
of all the Supreme Court of India. The
issue is, did the 1981 Act make such
changes as Parliament was entitled to
make, and thereby achieve the effect of
altering the non-minority character of the
Aligarh Muslim University, or did it seek
to achieve that end by simply and
substantially overruling the Supreme
Court decision, for which it has no
competence.

11. Although the Basha case is to be
treated as quoted here by us, we must
recount here some of the salient points
mentioned in that judgment, in the
manner we respectfully read it.

12. It took into account, in some
detail, the early history leading to the
setting up of the Aligarh Muslim
University by an Act of the Indian
Legislative Council in 1920. That Act
received the assent of the Governor
General on the 14th of September, 1920.
Several, but not all, property of the
University earlier belonged to one MAO
College,
the
full
form
being
the
Mohammadan Anglo Oriental College
and the Muslim University Association.
These were Mohammadan Institutions no
doubt. The inception of these came
sometime in the latter part of the 1870's;
one of the leading gentlemen, who took a
prominent part in this, was one Sir Syed,
father of the illustrious Hon'ble Judge of
Allahabad High Court Mahmood, J., the
short lived Barabankian from Olympus.
The idea was to set up a University and
the ambition was to go on the lines of the
University of no less a status than Oxford,
or Cambridge. An interesting fund was
raised to as large an extent as Rs.30 lac,
even in those days, by collecting one
rupee from every Mohammdan of the then
British India. Whether this was followed
to the letter or not, we need not inquire
into.

13. Mr. S.S. Ray told us that a bare
look at even some of the albums showing
pictures of the Aligarh Muslim University
would convince anybody of its deep green
character.
The
architecture
and
the
Quoranic inscriptions are all there.

14. Be that as it may, in the Basha
case their Lordships went on to consider
the
effect
of
the
Aligarh
Muslim
University Act of 1920 ((XL of 1920).
Their Lordships were considering the
issue for judging the validity of certain
amendments made to the Act in the years
1951 and 1965.

15. Although the Union of India
through Mr. Subramaniam has been at
pains to argue before us that the Aligarh
Muslim
University
is
a
minority
Institution, the stand of the Union of India
before the Supreme Court was radically
different. We cannot make much of this
opposing stand because Parliament had
18 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
intervened with the 1981 Act and the
Union of India and the Attorney General
are entitled to support the Acts of
Parliament in courts of law. Whether they
will succeed in their support or not, is
quite another matter.

16. Before the Supreme Court, the
Union of India argued that the Aligarh
Muslim University was a free Institution
and not a minority one; as such the
amendments made in 1951 and 1965 were
all supported by the Union. The Supreme
Court accepted the Union's contention and
ruled in as clear terms as possible that the
Aligarh Muslim University was not a
minority University; it is not necessary for
us to enter again into details about the
exact nature and scope of the 1951 and
1965 amendments. Suffice it for us to say
that those dealt, amongst other things,
with a recasting of the constitution of the
Court of the University, which was
originally dealt with amongst others by
Section 23 of the act of 1920. All the
members of the Court in 1920 had to be
Mohammadans; there was a clause in
Section 23 by way of a proviso, that
unless one were a Mohammadan one
would not be entitled to be a member of
the Court. These were substantially
changed; the proviso forbidding nonMohammadans from becoming members
of the Court was done away with, and
Azeez Basha and some others were
aggrieved, but to no effect. In ruling the
Aligarh Muslim University to be nonminority,
their
Lordships
considered
several matters, but to our mind the most
important one was about the grant of
degrees,
and
incorporation
of
the
University itself.

17. This matter must be dealt with
specifically and in some detail. Prior to
1920, the MAO College was affiliated to
the University of Allahabad; degrees were
granted by the Allahabad University to
students of this College; the College did
not itself grant degrees then.

18. There has been some dispute
raised before us whether in 1920 it would
be
possible
for
the
Mohammadan
community to found a University on their
own, without intervention of an Act of the
Legislature, for the purpose of granting
degrees to their own students. In the
Basha case, the Supreme Court has at
least assumed that it would be possible for
the Mohammadan community to set up a
University on their own without any
legislative Act. What the Supreme Court
has said in this matter, we have to and we
do accept. We only note that after 1956
and the passing of the University Grants
Commission Act a University can only be
set up by the appropriate legislature; on
the basis of Yashpal's case, which was
given to us by Dr. Dhawan, and paragraph
59 thereof (2005, 5 SCC 420), the safest
way to go about it, would be to have the
State Legislature utilize their power under
List-II Entry-32. The University Grants
Commission can of course make a
deemed University as provided in the Act.
It seems that even before the 1956 Act,
and even way before we gained our
Independence, the setting up of a
University fair and square would need
intervention of the Supreme Government.
The word ''University' might be referred
to in this regard in Earl Jowitt's
Dictionary of English law; the power of a
University to grant degrees in general
does not seem to be an exclusive right of
theirs; there seems to be some doubt as
the Encyclopedia Americana and also
Jowitt's Dictionary seem to state that
Colleges are as competent as Universities
1 All] The Aligar Muslim University, Aligarh V. Malay Shukla and another
19
to grant degrees. The passage at 15
Halsbury 256 can also be referred to; it
states there that the essential feature of a
University seems to be that it is
incorporated as such by the sovereign
power; Blackstone is referred to there.

19. For us these authorities need not
and perhaps should not be looked into; in
Basha the Supreme Court opined that it
would be possible for the Mohammadans
to set up a University on their own, but
what they could not be certain about, in
setting such an Institution up, would be
the matter of recognition of the degrees.

20. It is not stated clearly in Basha
what exactly this recognition means;
however, with all due respect, we assume
that the recognition of the degree would
mean recognition by the sovereign power
and all its subordinates of the validity and
reliability of the degrees to be granted.

21. Basha clearly stated that the
certainty of recognition of a University
degree could be had by the Mohammadan
community,
if
the
University
were
brought into existence by the Legislature.
In paragraph 26, on the left column of
page 673 of the said report his Lordship
the then C.J. said as follows:

"It seems to us that it must have
been felt by the persons concerned that it
would be no use bringing into existence
a University, if the degrees conferred by
the said University were not to be
recognised by the Government."

It was later on said in the same left
column:-

...it would not be possible for the
Muslim
minority
to
establish
a
University of the kind whose degrees
were
bound
to
be
recognised
by
Government and therefore it must be
held that the Aligarh University was
brought into existence by the Central
legislature and the Government of India.
If that is so, the Muslim minority cannot
claim to administer it, for it was not
brought into existence by it. Article 30
(1),
which
protects
educational
institutions brought into existence and
administered by a minority, cannot help
the petitioners..."

22. In our respectful reading this
was the cornerstone of the Basha
judgment. Their Lordships held the
University to be different from the preexisting Mohammadan College; it is
noted by their Lordships that there were
long negotiations and a tussle between the
Mohammadan community and the then
Government; the Government did not wilt
to the Mohammadan wish to have a
Mohammadan institution for the benefit
of the Mohammadan community, if not
exclusively, at least substantially; this was
not acceded to by the Government.

23. The Mohammadans gave way;
they took what they got. In the affidavit
before us the repeated requests made by
the Mohammadan community for their
own College are mentioned in several
places. Mr. Subramaniam took us through
those paragraphs to demonstrate that the
wish of the community to set up a
University of their own was indeed there,
and they tried very hard, no doubt, to have
their wishes granted.

24. India of 1920 is not same as the
India of 2005 or 2006. Section 3 (28) of
the General Clauses Act, 1897 as
amended up to date clearly says that the
20 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
India of 1920 is British India; we do not
have to go to a General Clauses Act
definition to know that it was not a
country where there were different
political parties of any real power or
importance; it was not an India where one
community could wait for a more
supportive and sympathetic political party
to come in power and then gain their
objective; there was no democracy. What
the British said, went. For any public
achievement the people of India, whether
Mohammadans or not, had to be in the
good books of the English people. Any
other achievements had to be made
underground. It was in this context that
the University was set up by the then
ruling Government; as soon as it was
incorporated under the auspices of the
English Government and the English
Legislature, the University had all success
and all support from the very beginning;
the Mohammadan community chose the
politically right path of inviting high
English personages like Lord Lytton to be
associated with their College; once they
gave way to the manner in which the then
Legislature
desired
to
set
up
the
University, the degrees of the University
had full and 100% value. The degrees of a
University, even if it could be set up
independently then, which was in the bad
books of the English Government, but
wholly Mohammadan and wholly green,
and perhaps wholly good, was of no
practical value; it would either die or go
underground. The other University, which
was set up by the Act of 1920 started with
a prospect of prosperity and prospered it
has, right until date.

25. We are aware that their
Lordships of the Supreme Court have not
looked at the issue in the light that we
have respectfully used above, but we feel
confident, again respectfully, that we have
not gone against what the Supreme Court
has stated but only tried to support it, such
support being necessary in the face of the
current challenges.

26. It is on record that the finances
of the Aligarh Muslim University became
the headache of the Government after
incorporation; it is on record that some 74
acres of extra land went to the Aligarh
Muslim
University
as
part
of
the
prosperous setting up process; it is
provided in the Act itself that the fund of
Rs.30 lac would be utilized for recurring
expenditure; this means that the Muslim
fund would help the University and die
out and no Muslim nucleus would remain
even in the accounts of the Aligarh
Muslim University.

27. In the Basha case certain
supervisory powers of administration
were clearly pronounced as important,
e.g., it is stated in paragraphs 7, 8 and 9 as
follows.

28. Section 6, the degree section so
to speak, laid down that degrees, diplomas
and other distinctions of the University
shall be recognized by the Government
like those of any other University. Section
8 provided that the University shall be
open to all persons of either sex and
whatever race, creed or class. Section 13
provided that the Lord Rector shall have
the right to cause an inspection to be
made and also cause an inquiry to be
made. The Court had to comply with
these provisions; the Lord Rector could
issue directions and after explanations
were considered his directions had to be
complied with by the Court of the
University. Section 14 contained the
provision for the visiting board which also
1 All] The Aligar Muslim University, Aligarh V. Malay Shukla and another
21
had power to inspect; it had annulling
powers; the Visiting Board also had
overriding powers. Although the Court
had to be composed in the beginning of
Muslims only, their Lordships said in
paragraph 9 of the Basha judgment that
there was no condition that the Lord
Rector had to be of the Muslim
community.

29. A very great attempt was made
before us to show that the Basha case, in
any event, needed guarded reading in
view of later Supreme Court cases.

30. It was said that in the PAI case
2002, 8 SCC 481 the Supreme Court has,
in a much larger Bench than the Basha
Bench
gone
into
the
issue
of
governmental control of even minority
Institutions. The argument therefore ran,
that the administrative control by, say, the
Lord Rector or the Visiting Board, would
not be factors robbing the Aligarh Muslim
University of its minority status today in
the light of the PAI judgment. We are of
the opinion that this views the coin from a
side, which is seriously opposite and
wrong. That a minority institution, for the
purpose of stopping maladministration
and gross unfairness, is subject to
governmental control does not mean that
when it is to be decided whether an
institution is a minority institution or not,
the factors of governmental control ought
to be discounted altogether. That would
be a complete misreading of PAI and it
would be viewing PAI from the wrong
and
opposite
angle;
that
minority
institutions can be controlled does not
mean that control of institutions by the
Government does not tend to show an
institution up as basically a non-minority
institution; when one is considering the
degree of control permitted for a minority
institution, one assumes the minority
status; when the minority status or the
non-minority status is not admitted or
assumed, the factor of administration and
control by free or non-minority groups
becomes not only important, but very
important.

31. Reference has been made to the
St. Stephen's College case about the
importance
of
administration
in
determining minority status. The report is
at 1992, 1 SCC 558. Brother Bhushan in
his Lordship's judgment has also dealt
with the importance of administration as a
determinative factor for judging minority
status. I fully agree with his Lordship.

32. In answering Question 3 (a) in
the TMA PAI case, Kripal C.J. said at
page 587 of the report above mentioned
as follows:-

"Q.3(a) What are the indicia for treating
an educational institution as a minority
educational
institution?
Would
an
institution be regarded as a minority
educational institution because it was
established by a person (s) belonging to a
religious or linguistic minority or its
being administered by a person (s)
belonging to a religious or linguistic
minority?

A. This question need not be answered by
this Bench; it will be dealt with by a
regular Bench".

33. That the question has been left
unanswered by the Bench does not mean
that all earlier Supreme Court Cases of
lesser strength are overruled; one has to
read the earlier cases and the openness of
the question all together. We in the
Division Bench of the High Court are in
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the happy position that we have no
problem in following St. Stephen's, and
the other cases.

34. In our respectful opinion, the
question of establishing and administering
an institution is infinitely the most
relevant at the point of time of its coming
substantially into being. Attention must be
focussed at that point of time. Who
established
it?
Who
was
then
administering it? What was the purpose of
establishing it? The answers to these
questions will enable the Court to
determine whether the institution is a
minority one or not. We are of the
respectful opinion that not one of these
questions can be held to be irrelevant in
the matter of ascertaining whether an
institution is a minority one or not. More
than this on this issue we do not have any
courage to say.

35. The question of administration
in 1920 after the Act came into being was
gone into in Basha. The college and the
Union however argued that the point of
time for our inquiry is much before,
perhaps even in 1870, when the M.A.O.
College was founded. We do not agree;
there is no doubt that the M.A.O. College,
if it had remained as such would be a
minority institution. The issue before us is
not whether the MAO College was a
minority College or not. The issue before
us is whether the Aligarh Muslim
University
of
1920
is
a
minority
institution or not. That certainly came into
being in 1920. Whether it was established
and
administered
by
the
minority
community through the year 1920, is a
question, which we must answer by
taking into account both Basha and the
1981 Act. This brings us to the crux of the
issue, i.e. whether the MAO College and
the Aligarh Muslim University are one
and the same thing and the process of the
incorporation in 1920 is no more than
something
superficial,
something
procedural, some mere process, which
cannot touch the substance of the matter.

36. We do not here again wish to set
down under two tables the items in
Aligarh Muslim University, which were
green and the items in Aligarh Muslim
University, which were free, so to speak,
white. The Supreme Court has done so in
Basha; the history of the Mohammadan
tint has been considered; the passing of all
property of the Muslim association and
the Muslim College, the passing of all
their
bequests and
receipts
to the
University have been considered by the
Supreme Court; their Lordships have
considered all factors and we simply have
to follow them. In following them, we
cannot escape the conclusion that their
Lordships treated the MAO College and
the Aligarh Muslim University as two
different and distinct entities; one was set
up by the Mohammadan community and
the other by the Legislature; one was
affiliated to the University of Allahabad
and was unable to grant degrees of its
own; the other was set up by an Act of
legislature and a Section permitted it to
grant degrees as recognised as those of
any other University; the one had
Mohammadans completely in control of
administration; the other had serious
supervisory
control
over
the
Mohammadan Court by, inter alia, the
Board; one had building, property and
some money; the other had, may be the
same building, but much more property
and unlimited English funds.

37. Their Lordships did not opine
that the MAO College permeated into the
1 All] The Aligar Muslim University, Aligarh V. Malay Shukla and another
23
Aligarh Muslim University, or that if it
had changed anything, it had only
changed into a dinner jacket from a
Sherwani.

38. In the face of this, Parliament
passed the said Act of 1981; the one and
the most important sub-section in the said
Act is sub-section 2 (l), which reads as
follows:-

"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".

39. Several other amendments were
made in 1981, but this sub-section is the
key to the lock. Is this sub-section good?
Can this and Basha subsist? These are the
basic questions.

40. The University was at pains to
submit that this sub-section and Basha
cannot subsist; if this sub-section were
before the Basha Court, according to
them, the decision would have been
otherwise; they relate to the test of Prithvi
Cotton, 1969, 2 SCC 283. According to
them 2(l) made all the difference; further
according to them, this difference the
Parliament was entitled to make.

41. Thus, we proceed on the basis
that 2 (l) and Basha cannot subsist. We
agree with the University to this extent,
and
to
this
extent
therefore,
we
respectfully disagree with the Hon'ble
Single Judge, who has read down 2 (l)
only but not struck it down. But was
Parliament entitled to insert 2 (l)? The
point is the point of Parliament being
disentitled to assume the role of a Court
of appeal in regard to judgments of courts
of law. There are two ways, basically, a
judgment can get overruled. First, it might
be by direct appeal; that is not possible in
Basha; in other matters, it might be that
the same issue comes up before a court of
higher authority and the earlier precedent
is disapproved. This is another equally
effective way of overruling in law; if the
High Court had said that X is a minority
institution in one case and thirty years
later, the Supreme Court had said no, X is
a non-minority institution, the High
Court's judgment would get substantially
overruled, practically as effectively as an
appeal then and there would have
overruled it.

42. Either way of overruling a
judgment is forbidden to Parliament.
Several cases in regard to this resolution
of conflict between Court cases and
legislative Acts have been considered by
the Hon'ble Single Judge and also cited
before us. Brother Bhushan has also
referred to those.

We mention only three below:-

(i) 1989 (3) SCC 488: Ujagar Prints
(II) Vs. Union of India
(ii) 1997 (8) SCC 522: S.S. Bola &
Others Vs. B.D. Saridana
(iii) 1996
(7)
SCC
637:
Indian
Aluminium Company Vs. State of
Kerala.

43. We refer specifically however,
to a case given by Dr. Dhawan, a very
recent one, being the case of Virender
Singh Hooda and others Vs. State of
Haryana and another (2004) 12 SCC
588. At page 610 in paragraph 46, the
24 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
following
sentence
occurs
in
the
beginning:-

"It is equally well settled that the
legislature cannot by a bare declaration,
without anything more, directly overrule,
reverse or override a judicial decision; it
may, at any time in exercise of the
plenary power conferred on it by the
Constitution render a judicial decision
ineffective by enacting a valid law on a
topic
within
its
legislative
field,
fundamentally altering or changing with
retrospective, curative or neutralising
effect the conditions on which such
decision is based (I.N.Saksena v. State of
M.P. (1976) 4 SCC 750: 1977 SCC
(L&S) 36).

44. This is the test that we apply. In
our opinion, the test applies on all fours.
Section 2 (l) is an enforced declaration of
substantial identity. Even according to the
University, on the basis of 2 (l) the
minority status has to be declared. Thus,
they themselves argue that the definition
is a definition of substantial identity as
between the Mohammadan College and
the incorporated University.

45. The Supreme Court did not hold
so; it held exactly otherwise; it was fully
aware (said with the greatest of respect)
of what it needs for an institution to
qualify as a minority institution; it never
said that incorporation and incorporation
alone as a process was the sole factor why
their
Lordships
were
deciding
the
University to be a non-minority one;
numerous factors were considered by
their Lordships; by consideration of those
factors,
their
Lordships
reached
a
conclusion of separation, of distinctness,
as between the minority College and the
non-minority University.

46. What Section 2(l) does is that it
both overrules the view taken by the
Supreme Court of the situation prevailing
in 1920 and it lays down, practically in so
many words, that the University is an
Article 30 establishment.

47. Why do we say that it does so?
Because 2 (l) states that the University
was only subsequently incorporated from
and out only of the Anglo Oriental
College, which was already there, and if
that is so, and if there is no distinction
between these two, then, because of the
process of incorporation and the process
of incorporation only, it is impossible to
say that the minority institution has lost
its minority character.

48. We have said that in Basha the
Supreme Court took a view of the 1920
situation; the view was a reasoned view;
there were many factors, which persuaded
their Lordships to come to a final decision
that the Aligarh Muslim University was
different from the MAO College and was
so substantially different as to make the
one a free institution notwithstanding the
other being a minority one. By Section 2
(l) the reasoning and the decision are
directly
ridden
roughshod
over
by
Parliament; it does away with the
reasoning by enforcing by way of
declaration that the MAO College became
the
Aligarh
Muslim
University
by
incorporation and that the one is the other
excepting
for
incorporation
and
incorporation alone; at the same time it
lays down in the definition a proposition;
the necessary corollary of which is a
statement
that
the
Aligarh
Muslim
University partakes of the same minority
status as its substantially indistinguishable
predecessor had, that predecessor being
1 All] The Aligar Muslim University, Aligarh V. Malay Shukla and another
25
the
MAO
College.
 The
necessary
corollary is a very close second step and
so
close
as
to
be
practically
indistinguishable
from
the
definition
itself. Section 2 (l) therefore seeks to state
practically in stark terms that Parliament
has overruled the Basha decision. This
Parliament is not entitled to do.

49. We are again grateful to Dr.
Dhawan for giving us authorities for the
proposition that if a deemed provision is
introduced by way of a statutory fiction or
enactment, the Court must proceed
consequently thereupon also, and not give
the definition a truncated meaning by
stopping with the definition and refusing
to give it its due consequences also.

50. The root case is the House of
Lords decision in the Finsbury Borough
Council case, reported at 1952 Appeal
Cases 109: (1951) All.ER 587.

This was approved in the case of
Arooran Sugars Ltd, (1997) 1 SCC 326,
see paragraph 11.

51.