# Jaipur Development Authority, Jaipur v. Daulat Mal Jain etc., JT 1996(8)

- **Citation:** (2001) 1 ILRA 111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-08-09
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaipur-development-authority-jaipur-v-daulat-mal-jain-etc-jt-1996-8-39570
- **Pages:** 3

## Text

1All] Jai Prakash Shastri V. Adhikshak, Janpad Karagar, Muzaffarnagar & others
111
parity in illegality. In The Secretary,
Jaipur Development Authority, Jaipur
v. Daulat Mal Jain etc., JT 1996(8)
S.C. 387, it was observed that Article 14
of the Constitution has no application or
justification to legitimise an illegal and
illegitimate action. If an appointment has
been made by the Vice Chancellor
illegally at earlier time, he cannot be
permitted to make such illegal order again
and again.

15. Another contention of the
respondent is that the petitioner has no
right
to
challenge
the
order
of
appointment of respondent no.4 as that
does not affect his right to function as
Reader in Zoology Department in
University.
The
grievance
of
the
petitioner is that he is entitled for
promotion to the post of Professor but
without considering his case by the
Executive Council, respondent no.4 has
been appointed as Professor by the Vice
Chancellor and that affects his rights. It
is not denied that the petitioner had made
representation to the Executive Council to
consider his claim for promotion to the
post of professor. The Executive Council
did not consider his case in regard to his
promotion to the post of Professor on the
ground that Writ Petition No.23263 of
1988 filed by him was pending. The said
writ
petition
has
been
decided
on
27.7.2000. After the decision of the said
writ petition it was for the Executive
Council
to
consider
his
claim
for
promotion to the post of Professor. The
Vice Chancellor has passed the order of
appointment
of
respondent
no.4
as
Professor on 9th August 2000. On the facts
and circumstances it cannot be urged that
the petitioner is not affected by the
appointment of respondent no.4 on the
post of Professor in Zoology department.

16. The last contention of the
learned counsel for the respondent is that
a Division Bench of the High Court
referred a question of law to be
determined by a larger Bench in Civil
Misc. Writ Petition No.3116 of 1999 and
in that order an observation was made that
pending further orders the University
can make ad-hoc appointment on the post
involved in that writ petition. Firstly, this
order was passed in a matter of Allahabad
University. The respondents were not
parties in that writ petition. Secondly, the
observation was made that the University
can make ad-hoc appointment but there
was
no
observation
that
the
Vice
Chancellor can make ad-hoc appointment.
The observation made in that referring
order has no relevance in the present case.

17. For the reasons given above, We
allow the writ petition. The order dated
9.8.2000
passed
by
the
ViceChancellor(Annexure-13 to the Writ
Petition) is hereby quashed. The parties,
in the facts and circumstances of the case,
shall bear their own costs.

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By the Court

1. Sri Kamlesh Narain appears for
Union of India and Sri Mahendra Pratap
for the State.

Heard learned counsel for the parties.

2. The petitioner is challenging the
impugned detention order dated 24.2.2000
passed under Section 3(2) of the National
Security Act.

A large number of points have been
taken in this petition but in our opinion
this petition deserves to be allowed on the
very first point, namely, that the detaining
authority did not communicate to the
detenue that he has a right to make a
representation to the detaining authority
as is required by the Hon'ble Supreme
Court in State of Maharashtra and others
Vs. Santosh Shankar Acharya, JT 2000
(8) SC 374.

3. No doubt this point was not
expressly taken in the pleadings at the
petition but on 28.9.2000 we had passed
an
order
directing
the
learned
Government
Advocate
to
file
a
supplementary affidavit stating whether
the detaining authority intimated to the
detenue that he has a right to make a
representation against his detention to the
detaining authority. In the affidavit filed
by the District Magistrate it has not been
stated
that
the
said
authority
communicated to the detenue that he has a
right to make representation against the
detention order to the detaining authority
(District Magistrate). Hence we hold that
the
detaining
authority
did
not
communicate to the detenue that he has a
right to make representation to the
detaining authority.

4. Learned Government Counsel has
relied on the decision of Hon'ble Supreme
Court in Kamlesh Kumar Ishwardas Patel
Vs. Union of India and others, 1995 SCC
(Crl) 643. That decision has been
considered by the Hon'ble Supreme Court
in State of Maharashtra's case (supra.).
Hence it cannot be said that the decision
in State of Maharashtra Vs. Santosh
Shankar Acharya's case (supra) was
delivered in ignorance of the earlier
decision of the Hon'ble Supreme Court in
1All] Manoj Kumar Garg V. State of U.P. & another
113
Kamlesh Kumar Ishwardas Patel's case
(supra). It is not open to this Court to say
that the Hon'ble Supreme Court in State
of Maharashtra Vs. Santosh Shankar
Acharya's case (supra) misinterpreted the
earlier decision of the Constitution Bench
of the Hon'ble Supreme Court in Kamlesh
Kumar Ishwardas Patel's case (supra).

5. Learned Government counsel has
also relied on the decision of Hon'ble
Supreme Court in Amin Mohammed
Qureshi Vs. Commissioner of Police,
Greater Bombay, (1994)2 SCC 355. This
decision, no doubt, is of a two Judge
Bench of Hon'ble Supreme Court but it
was subsequently followed by the five
Judge
Bench
in
Kamlesh
Kumar
Ishwardas Patel's case (supra). Learned
Government
counsel
also
relied
on
1994(2) SCC 337 (para-17).

6. However, in view of the latest
decision of the Hon'ble Supreme Court in
State of Maharashtra Vs. Santosh Shankar
Acharya's case (supra), we are bound to
follow the latest decision of the Hon'ble
Supreme Court. In fact this decision has
been followed by a Division Bench of this
Court in Nawab Dulha Vs. Union of India
in Habeas Corpus Writ Petition No.27252
of 2000 delivered on 20.9.2000.

7. Following the said decision, this
petition
is
allowed.
The
impugned
detention
order
dated
24.2.2000
is
quashed. The petitioner shall be released
forthwith unless he is not wanted in some
other criminal or preventive detention
case.

8. Learned Government counsel
prayed for leave to appeal to the Supreme
Court. In our opinion since the point
involved is covered by the Supreme Court
decision in State of Maharashtra and
others Vs. Santosh Shanker Acharya's
case leave is refused.. A copy of this
Judgment shall be supplied by tomorrow
to learned counsels for the parties on
payment of usual charges.

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