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Facts Submissions Issues

Contenti ons and Judgement.

in A.M.U., Case

'.

The uprerne Court of India in it judgment dated 03.11.2003 (in Saurabh Chaudhry &. others vs. Union of India and others) enhanced the aU India quota seats to 50% (after excluding SC/ST seals) from 25% in respect of MDIMS seats in all govt. Medical Colleges recognized/approved which W,1S earlier fixed in Dr. Dinesh Kumar .> case. It further held that [here shall be only (JlIC lc:,l ior al I the students seeking admission throughout the country to be conducted by AllM . The aforesaid order was made applicable from the session 2005-06.

Tn order LO comply with the direction of the Supreme Court, Assn, Director General (lVfE) Directorate General of Health Services (Medical Examinations Cell) Nirman Bhavan, _ cw Delhi through his letter No. U1202) J5i2004-MEC dared 03.12.2004 rcqi ested uic Principal J.N.M.e, AJv!U., Aligarh [0 furnish the information abour 50% all India quota seats (after excluding the seats validly reserved for SC/ST) in various MCl recognized/approved PG courses.

To consider the above letter of Asstt. D.G (M.E), Dlrectornic General of Health Services (Medical examination ceil), New-Delhi. the special meeting of Adn ission Committee (XLIV meeting) was held on 10.01.2005. The admission Committee in purse ance of Supreme Court j udgment dated 04.1 I.OJ in Saurabh Chandra case considered the ratio of supreme court of India in T.M.A Pai foundation case: (2002)8SCC (8) as clarified by the apex court in islamic Academy case (2003) 6SCC697. The committee while laying down the light of minority educational institution unanimously recommended the following (0 the Academic Council of me University 1.0 admit candidates in various specialities of MD/MSIPG Diploma programme pertaining to the Faculty of' Medicine from 2()05-06 io view of A.ivl.U. being a minority institution --

a) 50% seats to be reserved for Muslims of India d::;;Zmfssion to the P.O. programme strictly on the basis of merit in admission test to be conducted by the university.

b) 25% seats to be kept reserved towards institutional quota for admission strictly on the basis of merit in admission test to be conducted by the University.

c) The remaining yOlo seats for which admission test to be conducrc-' by the AIIM" oe dlJu.,;ated to the Ministry of Health & Family VvclL<Ue.

The aforesaid recommendations as forwarded by the Admission Committee were considered by the Academic council in its meeting held on 15.01.05. The Council noted the content of the letter (of Assu, D.O. (M'£') dated 03.12.04 and also the ruling of Hon'ble Supreme Court of India in it, judgment dated 04.I2.03 in writ petition (civil) 0.29 of2003 (Saurabh Chaudhry and others V.V.-OJ & others). The council also noted the ratio of Supreme Court of India in T.M.A Pai foundation case (2002)8 see 48 J; as clarified by Islamic Academy case, laying down the right of Minority Educational Institutions. The Council after extensive deliberation, endorsed the recommendations of the Admission Committee for admission to MD/MSIPG Diploma Courses in the Faculty of Medicine and recommended the same to the Executive Council.

The Executive Council of the University in its special meeting held on 19.01.2005 approved the same policy for admission to MS/MD/PG Diploma in the Faculty of Medicine from the session 2005-06.

:2

·0

L:- '

The union of India as appropriated gOVl. (in the light uf T.M.A. Pai case)

taking note of the definition as provided under 2 (L) of A.M.V. (Amendment) Act, 1981 and provision 5 (2)( C ) of the said Act. admitted that AMU is a minority institution and approved the policy of admission as stated above. (Letter dated 25.02.2005 Ministry of Human Resource Development)

Several writ F"",jvu'), challenging the constitutional validity ,-?l we cuv,e:said admission policy, were filed before the High Court of Judicature at Allahabad on the

following grounds.

(i) Sec. 2 (i) and 5 (2) (C) are ultra-vires to the constitution.

(ii) The reservation policy for admission in MD/MSIPG Dip. is in violation of article 14. 15 and 29 (2) of the Constitution as well as sec. g of AMlJ Act.

(iii) The reservation exceeding 50% limit is violative of Law as laid down by the Supreme Court in various cases.

An application was simultaneously submitted before the High Court praying to restrain the AMU. Aligarh from holding the schedule counseling commencing from 15.03.05 during the pending of writ petition, challenging the constitutional validity of the aforesaid admission policy in MD/MS/PG Dip in the Faculty of Medicine. However. the Allahabad High Court refused to restrain the counseling and allowed the admission in P.G. Iedical Courses by the university but made it subject to the

resultofwrit petition for everyone.

~

In its counter affidavit the AMU clearly denied all contentions raised through

various writs filed before High Court of Judicature, Allahabad, The University submitted that it is a minority institution which has its origin in Mohammadan Anglo Oriental ColJege, Aligarh established by a great social reformer and visionary Sir Syed Ahmad Khan. lt substantiated its contenrions by submitting that AMU Act as amended in 1981[(Amendment Act (62 of 1981») clearly recognizes the institution

known as A MU a minoritj 11.",tHL,1LIOn through its definition of University un .... c. :>Cl..

2 (1) of [he Amendment Act 1981. Further under sec. 5 (2) (C) casts a special responsibility/duty to promote especially the educational and cultural advancement of the Muslim of India. The supreme Court judgment of 11 judges bench in T.M.A Pai vs. State of Karnataka case which was explained by 5 judge constitutional bench of the Supreme Court in Islamic Academy foundation that minority educational institution have preferential rights to admit students from their own community/language, after fulfilling the condition laid down in T.M.A Pai case (with regan.:! to the reservation of seats in aided minority educational institutions after fixing/approval of minority and Non-minority educational institution).

It was further submitted- on behalf of AMU that the students seeking admission to MS/MD/PG Dip in Faculty of Medicine were fully aware (Guide to Admission Part -D) 2004-05 page 03 item No. 10 ) that they are to be governed by the changes in admission rules and/or eligibility criteria by Admission Committee/Academic Council from time to time. And, therefore they knew that they are to be governed by the revised policy on behalf of the University (through additional affidavit filed by the Registrar or the University). The attention of the Court is drawn to certain provisions of AMU. Act- sec. 5 (2) & 5 (9 A) providing for the specific powers of the university and sec. 23(2) providing for the composition of the university court (the highest executive body of the university) which have predominantly Muslims (figures supplied CIS well) to prove that it is being administered by Muslims which claim further establish beyond doubt the minority character of the AMU.

It was further submitted that the scheme as followed by .A~rdi'ng admission in MS/MDIPG Dip. in Faculty of Medicine is not only the judgment of Saurabh Chaudhry where it surrendered 50'Yo seats for all india quota after excluding the seats validly reserved but also of the policy guidelines issued by the Ministry of Health & Family Welfare (No-v-l ! 025/1/2003-ME (PI). "Department of Health 14-5 3 issued in

the light ofT.M.A. Pai case.

The union of India in its affidavit (tiled by the under secretary, Ministry Human Resource Development, Govt. of India, New Delhi) submitted before the court and drew the attention regarding origin of A1Vill in M.A.O. College, AJigarh. The preamble of A.M.U. Act 1920 clearly states that the Act incorporate a teaching and residential Muslim University at Aligarh and dissolved the societies (registered under the Societies Registration Act 1960) known as Mohammadan Anglo-Oriental College (which managed the affairs of A.M.O. College Aligarh) and the Muslim University Association (which made efforts to raise the status of M.AO college from a College to the University).

It further traces the development thereafter through amendments in the Aligarh Muslim University Act in 1951 & 1965 and the judgment of Supreme Court in Azeez Basha vs. UOL which created a confusion about the establishment of A.M.U. by the Muslims of India. Thereafter the AMU Act was amended in 1981 which bas removed all doubts about its establishment by the Muslims of India, evident from the definition and other provisions especially sec 5 (2) ( C ) & 23 of the AMU (Amendment) Act, 1981 and that after the aforesaid amendment is recognized as a minority educational institution and in the light of I J judge bench judgment in TJv[A Pai foundation & others vs, union of India the ministry conveyed its no objection to the decision taken by the appropriate authorities of AMU to admission policy reserving 50% of total seats for Muslims on aU India basis in MDIMS/PG Dip Courses in the Faculty of Medicine. The similar views were submitted before the court by [he Artoney general or India. And it is submitted that AMU (Amendment ) Act 1981 specially restored the minority institution status and did not establish any institution as minority Instinnion.

.r , C)

ISSUES

In view of the rival contentions following Issues were harned for tile ,J .crminati on by the Court.

o I. Whether AMU is a minority mstitution entitled to protection under Article 30 of the constirutions so that it can provide for reservation of seats for Muslim candidates only It is to be decided with reference to -

a) Whether the judgement and order of the Honblc Supreme Court in case of Azeez Busha v. U.OI (MR 1968SC662) is no more a good law in view of the changes effected in statutory provisions, vide amending Act of 62 of 19S)) ?

b) Whether the provision of Act of t'i2 of 1981 especially sections & 2 (1) and 5 (2) are retrospective in nature and have the effect of declaring AM1) as minority institution within the meaning of Act ]0 or the Constitution.

02. Whether the amended section l(l) & :5 (2) (I;) <Ire within the legislative competence of Parliament and whether the said umendment attempts to over rule the judgment of the Hori'blc Supreme Court in case of Azeez Basha vs. VOl 'J

03. Whether the reservation of the entire 50vA. seats for Muslims required to be filled on the basis of the entrance examination conducted by /\tv"1U from internal as well as external candidates is violative of Artc. 14 &. 29 (2} or the Constitution ?

04. Whether the petitioners have (Iny locus to maintain the present writ petitions. and whether the petitions became idJll:.:t'.:,lll.~ in view or~ubsel)l.Jenl developments "

CONTENTIONS

The fo!lowing contentions were raised on behalf of the petitione:.

l . The .:'.""11..1 has been declared (0 be a non-minoruy institution established by an ACl of kgish!ture and, therefore. GWl not claim protection under Article 30 or the constitution. The finding could nc, v~ ,J',~. .urned by introducing section 1. (!) and sec 5 (2) (c) to (he Act of 1920 by Amendment Act of 1981 as it is binding upon one and all throughout the country LInder Article l't1 of the

constituti on.

1. The legislative power of the legislature can not be extended so ;15 to over rule/reverse the decision of the court.

3. The U.O.I. has taken 11 firm stand before Hon'bie Supreme Court in the case of Azcez Basha V$. UOI that AMU was established under a legislative Act and not by Muslim C()mmuni~' of India, and lhere1on: nOI entitled ro the protection under article 30 of the constitution. Thc UOI can not tum around and assert in these writ proceedings that AMIJ has been established by Muslim community of India.

4. The subsequent amendment ill the rules can no! govern the policy of selection which has already been initiated by tbc university,

5. The reservation rnade for Muslims in respect ol 50')" of total seats i.s violative ofArticle 19 (2) & and i 00% reservation in respect ot an)' category of sears further violates Article 14 of the constitution of India. The petitioners being tully qualified lor being considered against aforesuid category of scats thus have every rigHI to maintain rhe present petition.

On behalf of AMU, it was contended that-

i) It is within the legislative competence of Parliament vide entry 63, List I, schedules! VU of the constitution of India to enact a legislation for AMU which is declared to be an institution of national importance, and therefore, the amending Act of 198 I is within the legislative competence of the parliament.

ii) By the Amending Act of 198 I the Parliament has changed the basis on which the previous decision of the Hon'ble SC was t~unded. The changes so effected can not be termed as usurption of judicial powers.

iii) The Parliament has fulfilled its obligation to protect the fundamental rights by recognizing through the Amending Act of 198 l, rhar AMU has been established by the Muslims. Thus the Parliament has cleared the doubts which had arisen because of the language of the earlier Act.

ivy The amending Act of 1981 is a declaratory statute and so retrospective in

nature It has removed or cured the defects which were noticed in earlier legislation, subject matter under consideration in the case of Azeez Basha. Because of the curative action of the competent legislature the earlier judgment becomes inseperable and unenforceable.

v) Once it is established that AMU has been established by the Muslim (minority community) the right EO administer the same is vested in the Muslim (minority community) and there can not be any waiver of the right of administration. Mere non-performance or the defeasance of the right will not waive the right and the minority community can claim at any point of lime such right of administration so long as the establishment of the institution by the minority community is established

.. ~

vi)

(5_~

AMU, being a minority institution, has a right to provide quota in respect

of students of its own community. Such a right has been recognised by the constitution bench of the Hon 'ble Supreme Court in T.M.A Pai & St. Stephens College vs. university of Delhi.

vii) ;:-;,.:, , .,..0 has taken a well reasoned decision in r"-'J-'"..;t v. reservation of

seats for Muslims in post graduate courses whicb has since received acceptance by VOl as per letter dated 25.02.2000. The aforesaid policy of reservation is also in accordance with the judgment of the hon'ble Supreme Court in P.A Inamdar & others vs. state of Maharastra 2005 (3) esc (SC) 373 which further clarified that admission in minority institution should reflect its minority character which may be jeopardized if they do nor do

so.

viii) The petitioners have no locus tel maintain the present writ petitioner in as much as they are not entitled to be considered against 50% quota sears which are reserved for Muslim candidates as they do not belong to the particular minority community, Further the open category sears be filled through examination on all India basis, held by AIIMS have gone unfilled and the petitioners failed to compete in the said entrance examination. Moreover in view of the judgment ofHon'ble SC in MCIV Madhu Singh & other (2002) 7 SCC 258, since the admission process has to be completed by a particular dale, no effective relief can be granted to petitioners at such a belated stage.

Findings

I, The judgment of the Hon 'bit! Supreme Court in.the Azecz Basha case was based on over all consideration of the provisions of the Act and the historical background :" "''Ji~l- .mLJ was brought into existence, Such b~-:~ ~n _ .. t, :vl' the aforesaid judgment was rounded (effect of sec. 3 read with sec. 6 of the original Act) has not been so fundamentally altered under Act 198] so as to create a situation that in the changed circumstances the court could not have rendered such judgment. Therefore, the judgment of the Hon'ble Supreme court where it held that .AlvlU was established by legislative Act and not by Muslims of India is still a good law. And the AMU being a body corporate can not claim the rights conferred only upon the citizens under article 30 of the constitution of India

2 The power to amend the statutory provisions can not be extended to such an extent as to create a situation whereby legislative Act declared, constitutionally valid could be rendered unconstitutional by subsequent legislative amendment.

In view of the facts noticed and conclusions arrived at the hon'ble Supreme Court in the case of Azeez Basha V$, UOT (AMU being brought into existence). it can not be said that the said decision was solely based on the interpretation of the statutory provision. so as to enable legislature [0' declare vide section (2) (L) that ANfU has been establish by the Muslim minority. The declaration in that regard under aforesaid sec. 2 (L) is on the face of it is an attempt to negate the judgment of the Honb!e Supreme Court specially when such declaration has been made without altering the foundation/basis upon which the judgment in Azeez Basha vs, uor was based.

3. The AMU is not a minority institution Article 30 of the constitution of India. and therefore, has no right to provide

e~e protection "doc

any reservation on the bases of religion. The reservation provided by the AMU (to the extent of 50% of total seats for Muslims) is violative of article 0[29 (2)

of the constitution of India.

4. Since the policy of reservation in favour of Muslim candidates only (upto the extent of 50% of total seat) is violative of Act. 29 (2) and if quashed by orders of the court the petitioners belonging to other communities have a right to participate against the seat available under reserved category of 50% of total seats irrespective of the facts that whether petitioner bad appeared in the all India Entrance Examination and were successful therein or not as well as the petitioners who were the internal candidate and had appeared in the examination conducted by AMU for internal students. Therefore under such circumstances the writ petitions have neither become mfrucmous on the basis of the subsequent development and it can not be said that the petitioner have no locus to challenge the reservation which bas been provided for in respect of

Muslims only.

In the light of aforesaid finding Hori'ble High Court struck down the admission policy fixing 50% quota for Muslims only in rvIDIMS PG Dip in the Faculty of Medicine, AMU Aligarh. It further directed to hold fresh admission

test against the seats fixed under 50% quota.

The Single Judge bench of the Allahabad High Court struck down the policy of reservation for sears in MS/MDI PG diploma in the faculty of Medicine, J. . Medical College, A.M.U. Aligarh and directed the A.M.U. to hold afresh rest against the reserved seats (i.e. 50% of total seats reserved only for Muslim candidates).

Aggrieved by the judgement of ".- f.l(' .. "'_ .. igh Court. A.M.U. filed a special appeal under Chp. vm Rule V of the rules of the Hic;h Court and a stay application under sec. 151 of CPC in the aforesaid appeal against the judgement and the following grounds were mentioned in the memo of special leave to appeal which sought that impunged order errs in law and must be set side.

I. Because the court below failed [0 appreciate the historical facts placed before it which clearly establish that the incorporation of the A.M.U. by converting MAO College (Which was established by Muslim) to University, and the aims & objects of MAO were to be continued by the University

2. The A.M.U. (Amendment) Act 1981 has the effect of removing the ambiguity and curing the defects which were noticed by Hon'ble Supreme Court in Azeez Basha Case in 1968 (I)SCR 833.

3. The Learned Single Judge while accepting thai Parliament has power to remove defects by appropriate legislation erred in nOI applying this principle to the facts of the case

4. In the facts and circumstances of the instant case the court below failed to appreciate that until Azeez Basha case. the A.M.U. was treated and accepted as minority institution entitled to be treated as such under article 30 of the Constitution.

5. The Learned SingJe Judge erred in holding that A.IvI.U. is not a minority institution within the meaning of article 30 on the ground of the Hon 'bJe Supreme Courl judgement in Azeez Basha case. II failed to appreciate that the statutory amendments made by virtue of 1981 amendment to the A.M.U. Act, 1920 has taken away the very basis on wnich Azeez Basha case had been decided. The Learned Single Judge also erred in law by holding that the basis of Azeez Basha

bad not been so fundamentally altered that his Hon'ble court would have reached to different conclusion in the light of 1981 amendment.

6. In the fact and circumstances of the instant case, the court below failed to appreciate that Azeez Basha case proceeded on a narrow reading of the A.M.U. Act, 1920 which specifically stated that the said Act of 1920 established the A.M.U.

7. In the facts and circumstances of the insta .. t case, the court below failed to appreciated that the reading of complete A<;( of 1920 (As amended by the Act of 1981), clearly demonstrates that the purpose of the Act was to simply accept and assert the status of A.M.U. as a minority instirution and clothe it with the form of a University.

8. The Hon'ble Single Judge has erred in law by proceeding on the footting that A.M.U. was created by Act of 1920 because it failed to correctly appreciate that Iht: vt:ry concept of creation and establishment of A.M.U. by the Act of 1920 was incorret and at any rate stood corrected by the amendment Act of 198 J, a fact also admitted by tbe U01 in its affidavit dated 23.5.2005 before the court.

9. Though the court below in this instant case accepted the argument that the Parliament can fulfill fundamental rights by legislation but failed to apply it to the facts of the case. (this is infact done by the Act of 1981 for furthing the cause of Minority Right under Art. 30 of the Constitution of India). Further it accepted that ~~~~~~~~~~~~~~~a~~~~~~ decisions of the supreme Court but failed to apply the principles of that decisions to the Act of 1981 .

10. The court below in the present case failed to consider the overall amendments made by the Act of '98 J and emphasized only sec. 2( I) but failed to consider the other amendments relating to minority status i.e ss, 5(2)(a) & 5(2)(c) which have not been struckdown. This create a contradictory result Thus according to the inpunged judgement A.M.U. is not a minority institution but has to fulfill the statutory purposes out lind in sec, 5(2)(a) and (c) of the Act. Further the centrality of the mosque clearly indicates that A.M.U. was intended to be and IS indeed 11 minority institution.

';'

11. Tho Hon'ble S"o1' Judg' has "mmitted an 'ITO' in ,~ Ibm "",01,)0 is available to citizens. In A.M.U. case university court is supreme governing body while in case of other educational institutions management is vested either in the Board of Trustees or Governing body of a society (in case of a society). So neither a trust nor a society is a citizen, therefore in terms of impunged judgement no minority educational institution car: '··"-C'-- d'C. right under article }O for administrating it. Thus the court did not notice the de;visions in a catena of cases rclating to the safeguarding of rights of the incorporated entities through their

members/share holders.

12. The learned single judge failed' to appreciate that the conditions of article 30 were

fulfilled by the Muslim community. It provided the lands, buildings, college, money and endowments for university along with the specific provisions of the Act of 1920 (i.e sec. 6, 7 & 9). If the interpretation in Azeez Basha case is applied. no religious or linguistic minority can establish a university because it can be established by an Act of Central or State Legislative as per the provisions of U.G.C. Act 1956. (The clothing of an institution by incorporating and giving it legal status are persona of univt:rsity, would not alter the minority character of the institution). Thus the legisiation clothing a minority institution with the legal persona of the university does not establish it but recognizes the effective and meaningful exercise of sight conferred under article 30 of the Constitution. Thus establishment of A.M.U. was by Muslim Community whefea:; the incorporation

of university is made by Act of legislature.

13. the Single Learned Judge has erred in law as it failed to appreciate that legislature

can always amend a statute (JfJJ an . .<Vucnding Act can not be negated merely because it nultifies the operation or an earlier Amending Act (Amending Act of

J 956 & 1965).

14. The Court below fail ed to take into consideration the fact that the definition

clause of a university normally defines the university and not the college while definition under sec. 1m of A.M.U. Act beside defining the university clearly

establishes the continuity betwec::n M.A.O. college and the A.M.U.

15. Th, Hop 'bl, single judge "Hod to appreciate that 'h~Y' a presumption of constitutionality in favour of statute and it is for the person ehalling the same to demonstrate that the statute is unconstitutional. This position has not been demonstrated in the original writ petitions while challenging definition of university under sec. 2(1) as unconstitutional.

'f ,- .<J" case of saeez Busha the Hon'bJe Suprerr : "-u- '<"·._""v to appreciated that

UGC Act, 1956 under proviso 20 to sec. 23 mandated that the then existing pri vate universities have to convert themselves as statutory university within a period of two years. It wij],therefore, be erroneous to contend that the said university would loose its minority status (If it is there) merely because converting into a statutory university.

17. The Learned Single Judge failed to appreciate that there is no difference between

a 'University' and 'Deemed to be a University' under UGC Act. Similarly, it is erroneous [0 hold that a Deemed to be a University' is a private university. Moreover, the Learned Single Judge erred in holding that a 'Deemed to be a University' can be a Minority University while at another place in the judgment. Hon'ble Single Judge has held no juristic entity can claim a right under article 30

of the constitution.

18. That the fuJI historical facts were not before the Hon'ble Supreme Court while

deciding Azeez Basha Case. The U.OJ filed affidavit (in four volumes) before the single learned judge. The facts which clearly emerge from it strongly support the view that the university was established by Muslim Community.

19. The learned single judge has failed to appreciate that writ petitions filed before it have become instructions and the writ petitioners (now respondents) were not

entitled to relief because.

a. that they were not eligible or upo mark for the All India quota of25%

for even 50% or 75%,

b. They either did not sit in the examination and were not eligible

c. Thev failed to make it (0 the selection list

20. The judgment of the learned single judge is contrary to the philosophy of the Constitution, historical facts, known rules of statutory interpretation and is in conflict with the decisions of the Supreme Court of India and thus the judgment under challenge should be set aside.

·' (.)

The special appeal was .heared by a division bench of ~gh Court considering of A.N. Ray. C.J. and Ashok Bhan 1.

The co urt speaking through A.N. Ray, C.J. in the very beginning made it clear that the court is providing on "'le ground in Azeez Basha's Case that A.M.U. was not established by Muslim minority therefore the issue before the court is that:

a. Whether the Amendment Act of 1981 has cbanged the basis of Azeez Basha's case so as to render it ineffective, and

b. Did it seek to achieve that end by simply overruling the Supreme Court decision, for which it has no competence?

Submissions:

Sri S.S. Ray, learned Senior Advocate, submitted that Parliament. having legislative competence to legislate on Aligarh Muslim University by virtue of Entry 63 List-I to VU Schedule of the Constitution of India, had amended the Aligarh Muslim University Act, 1920 by 1981 Amendment Act which entirely changed the basis of the Apex Court judgment in S. Azeez Basha and another Vs Union of India. The amendment Act 1981 is in consonance with the history of the establishment of the Aligarh Muslim University that by amendment brought by 1981 Act specially in definition of the University. i.e. in Clause 2(1) and amendment brought in Section 59(2)(c). which are retrospective the basis of the judgment of the Apex court in Azeez Basha case has gone and the University is a minority institution entitled LO reserve 50% seats for Muslim students.

Dr. Rajeev Dhawan, on behalf of A.M.U. submitted:

I. That Parliament whose duty is to protect the fundamental rights of citizen as 11 measure of positive intervention. brought 1981 amendment retrospectively amending J 920 Act to change the very basis of the judgment of the Apex Court in Azcez Basha's case.

("I

• -r

2. That 1 981 Act is exercise of curative Parliament. The statute is declaratory and the very nature of the muendment.

L§J

and corrective power of the intended to be retrospective by

3. That Parliament was fully competent to amend 1920 Act and no constitutional amendment was necessary in fact of the present case. He submitted that nothing pr,,"'ented the legislature to intervene and declare by amending the n"l Yv." .... d required for changing the basis.

4. The amendment in definition clause, i.e. Section 2( I) embraces entire history of fact and history of legislation. It re-enforced de-facto eswblishmem an de-jure culminated the process or ... siablishment. The mcorporarion is integral part of estahlishment without which no minority can qualify for protection under Article 30 of the Constitution.

Sri Ravindra Srivastava, Senior Advocate on behalf of National commission for Minority institute submitted that nothing prevented the legislature to intervene and declare by amending the Act which required for changiog the basis. The amendment in definition clause i.e. ection 2(1) embraces entire history of fact and history of legislation. It re-enforced de-facto establishment and de-jure culminated the process of establishment. The incorporation is integral part of establishment without which no minority can qualify tor protection under Article

30 of the Constitution.

Dr. Gopal Subramanium'on bchalfofthe Union of India made similar submission.

Sri Ravi Kant, Senior Advocate. appearing for the writ petitioners. refuting the submissions raised by counsel for the Aligarb Muslim University and Union of India. submitted that the judgment of the Apex Court in Azeez Bash's case still holds the field. He submitted that the amendments made in Section 2( 1) and Section 5(2)(c) are nothing but brazen overruling of the judgment in Azeez

Bash<"l'S Case.

Finding:

I. it would be a wrong view to think that by introducing just sec. 5(2)(c) ofthe Act the basis upon which Azeez Basha decision was based has been

changed.

2. Sec. 2 (e) is an enforce declaratir" of substantial identity. It both over rules the view taken by the '::>Uprt;111t: Court of the situation prevailing in 1920 a,«, it Jays down. practically in so maoy words, that university is an article 30 establishment Sec. (e), therefore, seeks to state practically in stark tenus that parliament has over-ruled Azeez Busha decision.

3. Sec. 2( e) of the 1981 Act defining university is not morly curative but substantially altered the definition of an item in the constitution. The definition of any word or item in the Constitution can not be inserted by Parliament except by way of a Constitutional amendment. The 1981 Act, therefore suffers from the lack of legislative competency. A minority institute can not be created by parliament but only by minority.

4. Further the Parliament is incompetent to declare b at least a simple legislation, an institution to be a minority institution. It is in the peculiar province and it is the jurisdiction of the courts of law to declare whether an

institution is a minority institution or not.

5. the provision under sec 5(2)( c) providing for especially the educational and cultural advancement of Muslims is flatly discriminatory.

The special appeal therefore, was dismissed and the following orders were passed.

I. The judgment and order under appeal is affirmed excepting to the extent indicated below;

ii. the Aligarh Muslim University is declared to have always been and

is a free institution and not a minority institution within the meaning of Article 30 of the Constitution and that the ruling in Busha is in no

way touched.

Ill. Section 2(1) and 5(::'Vcj inu\JLii..lced in the Aligarh Muslim

University Act of 1920 by the said 1981 Am~ndffient Act are invalid

and those insertions arc struck out.

The removal of the words 'establish and' from the preamble of me 1920 Act by the 198 J Act is invalid and those words art! restored to the preamble.

v . The claim of 50% Mohamrndan quota for the post graduate medical

iv,

courses by the University is +eclared as unconstitutional and impermissible and they shall make no claim of minority quota in like or other manner in future.

V1. The Union's communication dated 25,2.1005 vetting the purported minority status of the Aligarh Muslim University by permitting their claim of Muslim reservation is quashed and set aside.

vii. The admission of Muslim students made on the invalidly claimed quota of 50% is maintained 00 account of pure practicality.

Vl11. the University shall undertake an exercise of recasting the results of

the examinations of 2005 and will ascertain thereby which of the cross appellant would have secured admission instead of which of the Mohammdan students admitted in the 50% quota; alternatively which of the 34 cross appellants would have obtained a more preferred choice of discipline according to their priorities, and instead which Mohammdan students were permitted to have such disciplines because and only because of the 50% quota. The exercise shall be made by way' of recorded writing and preserved in the documents and records of the University and communication shall be made by the University in this regard to the cross appellants or their advocates on record within it period of a fortnight from the date of completion of judgment.

ix, The above exercise will not mean that any of the Moharnrndan students will be di:;i.)dg:;:c: by any of the cross appellants: the exercise will however mean that if possible. the University will offer the newly seen lO be entitled Cr<IS~ appellants disciplines more or

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their choice, if according to the University they will be able to complete such disciplines within the limited time available in a reasonable manner.

x. Furthermore, if any of the so seen newly entitled candidates have not secured admission to the Aligarh Musl j.-, University at all and take the examinations for the post doctoral course in 2006. then and in that event, the better result of the two years shall be counted in favour of such cross appellant; it is clarified that such better results will be counted only within the same institutional reservation,

In granting the above orders, we are aware that in the Court below the prayer for restoration of the preamble of the Act to its original form was not made: in this type of litigation, however, in our opinion, the procedure of amendment is infinitely Jess important than the arguments made on the relief, and the necessity of making as quickly as possible one full and compendious order so far as one particular Court is concerned, at one and the same time.

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