# Mohammad Suleman v. State of U.P. through Principal Secretary and others

- **Citation:** (2002) 2 ILRA 332
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-03-21
- **Case number:** Criminal Misc. Habeas Corpus Writ Petition No. 23183 of 2001
- **Bench:** J.C. Gupta, K.K. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-suleman-v-state-of-u-p-through-principal-secretary-and-others-39777
- **Pages:** 9

## Headnote

Under Article 22 (5) of the Constitution
of India - Detention under section 3(2)
of N.S.A. (National Security Act) In the
absence of copies of petitioner's bail
application and the comments of police
thereon the petitioner was certainly
denied the right of making an effective
representation and accordingly Article 22
(5) of the Constitution of India has been
violated.

The impugned order of detention is not
sustainable on account of vital and
relevant material having been not placed
before the detaining authority viz-a viz
each of the five grounds on the basis of
which the impugned detention order was
made. The continued detention of the
petitioner
also
stands
vitiated
on
account of the fact that even if each
ground of detention is taken as a
separate
order
of
detention,
the
petitioner was not supplied with the
relevant documents to enable him to
make an effective representation against
each of the grounds of detention and
thereby the right conferred upon him
under Article 22 (5) of the Constitution
of India has been infringed.
Case law discussed:
1985 SCC (Criminal) 125,
2001 (42) ACC 995, 2000 (40) ACC 729,
1988 SCC (Crl.) 107, 1990 SCC (Crl.) 258,
2002 (2) JT SC 365

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
332
period of three years prescribed by Article
137 of the Indian Limitation Act, 1963 it
would decline to answer the reference. In
case, it is held by the civil court that
Article 137 prescribes limitation for
making
application
for
which
no
limitation is prescribed and is not
intended to lay down a limitation for
making an order of reference, it would
proceed to answer the reference in
accordance with law.

5. The petitions are dismissed
without prejudice to the rights of the
petitioners
to
raise
the
plea
of
maintainability of reference before the
civil court and subject to the direction that
if any such plea is raised by the
petitioners, the civil court will examine
and decide the same in accordance with
law. It may however, be clarified that any
observation made in this order will not
impinge upon the aspects required to be
decided by the civil court on merits of the
issues involved in the case.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21 MARCH, 2002

BEFORE
THE HON'BLE J.C. GUPTA, J.
THE HON'BLE K.K. MISRA, J.

Criminal Misc. Habeas Corpus Writ
Petition No. 23183 of 2001

Mohammad Suleman

...Petitioner
Versus
State of U.P. through Principal Secretary
and others

 ...Respondents

Counsel for the Petitioner:
Sri Daya Shanker Misra
Sri M.A. Qadeer
Sri Chandrakesh Misra

Counsel for the Respondents:
Sri Mahendra Pratap
A.G.A.

Under Article 22 (5) of the Constitution
of India - Detention under section 3(2)
of N.S.A. (National Security Act) In the
absence of copies of petitioner's bail
application and the comments of police
thereon the petitioner was certainly
denied the right of making an effective
representation and accordingly Article 22
(5) of the Constitution of India has been
violated.

The impugned order of detention is not
sustainable on account of vital and
relevant material having been not placed
before the detaining authority viz-a viz
each of the five grounds on the basis of
which the impugned detention order was
made. The continued detention of the
petitioner
also
stands
vitiated
on
account of the fact that even if each
ground of detention is taken as a
separate
order
of
detention,
the
petitioner was not supplied with the
relevant documents to enable him to
make an effective representation against
each of the grounds of detention and
thereby the right conferred upon him
under Article 22 (5) of the Constitution
of India has been infringed.
Case law discussed:
1985 SCC (Criminal) 125,
2001 (42) ACC 995, 2000 (40) ACC 729,
1988 SCC (Crl.) 107, 1990 SCC (Crl.) 258,
2002 (2) JT SC 365

(Delivered by Hon'ble J.C. Gupta, J.)

1. The petitioner- Mohd. Suleman
has been detained under section 3 (2) of
the
National
Security
Act,
1980,
hereinafter referred to as 'NSA' on the
basis of order dated 8.4.2001 passed by
Sri B.S. Bhullar, the then District
Magistrate, Kanpur Nagar which was
served upon the petitioner alongwith the
grounds of detention. The grounds of
2 All] Mohammad Suleman Vs. State of U.P. through Principal Secretary and others
333
detention were based upon a number of
incidents in respect of which cases have
been registered at different police stations.
They were crime no.91 of 2000, 7 of
2001, 20 of 2001, 39 of 2001 and 92 of
2001. In the grounds of detention after
narrating the facts relating to the aforesaid
crime numbers, the District Magistrate
recorded his subjective satisfaction that
on account of criminal activities of the
petitioner and his associates public order
of the entire Kanpur District has been
disturbed. In the said order it has been
also stated that the petitioner was already
detained in jail in connection with case
crime no. 91 of 2001 under section 147,
323, 336, 427 I.P.C. 7 Criminal Law
Amendment Act and 6 United Provinces
Special Power Act police station Kotwali,
Kanpur Nagar and in case crime no. 20 of
2001 under section 147, 148, 149, 307,
332, 353, 436,338, 427, 295 IPC and 7
Criminal Law Amendment Act police
station Bekanganj and in case crime no.
39 of 2001 under section 153-A/ 153-B
I.P.C. and 7 Criminal Law Amendment
Act police station Chamanganj, Kanpur
Nagar and whereas the petitioner has filed
applications for bail in those cases whose
copies have been annexed as Annexure 26
to 28 and whereas in case crime no.91 of
2001 the petitioner has already succeeded
in obtaining order of bail in his favour
from court of District Judge, Kanpur
Nagar on 4.4.2001 and since the detenu
was likely to be released on bail in other
cases, it was necessary to detain the
petitioner under the NSA because if he
was released on bail the petitioner would
repeat the criminal activities prejudicial to
the maintenance of public order. It was
further stated in the order that hearing of
bail applications in case crime no.20 of
2001 was fixed in respective courts for
9.4.2001 and 10.4.2001. The grounds of
detention were duly served upon the
petitioner mentioning therein that the
detenu may make representation to the
State Government against the said order
of detention and the same would be
placed before the Advisory Board and
before it, the detenu would be afforded
opportunity of personal hearing.

2. The order of detention has been
challenged mainly on following grounds:

1)
that the order of detention suffers
from virus of casualness showing that
there was no real subjective satisfaction
for detaining the petitioner under the
NSA,
2)
that vital and relevant materials
relied upon in the grounds of detention
were not placed before the detaining
authority and the impugned order of
detention was passed in a routine manner
without application of mind.
3)
That relevant and basic material
relied upon in the grounds of detention
were also not supplied to the petitioner
which has resulted in denial of petitioner's
right of making effective representation
and therefore, Article 22 (5) of the
Constitution of India has been violated,
and
4)
That the order of detention is based
upon extraneous consideration.

3.

The
detaining
authority,
respondent no. 3 as well as other
respondents have filed counter affidavits.
On behalf of the petitioner rejoinder
affidavit was filed and since it contained
some new facts the respondents were
given opportunity of filing supplementary
counter affidavit. Accordingly respondent
no. 3 has filed his own supplementary
counter affidavit.
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
334
4. We have heard Sri Daya Shanker
Misra, learned counsel for the petitioner
and Sri Mahendra Pratap, learned A.G.A.
for the respondents.

5. With regard to the first ground it
has been argued by Sri Misra that the
grounds mentioned in the detention order
are verbatim reproduction of the dossier
forwarded by the sponsoring authority to
the detaining authority. He submitted that
even spelling and grammatical mistakes
which occurred in the dossier have been
repeated in the grounds of detention that
itself shows how casually the detaining
authority dealt with the matter without
applying his own mind independently.
Mistakes such of verbs, construction of
sentences etc. have been repeated. In
support of his submission Sri Misra
placed reliance upon the decisions in Jai
Singh
Vs.
State
of
Jammu
and
Kashmir, 1985 SCC (Criminal) 125
Bidla Vs. Supdt. District Jail 2001 (42)
ACC 995, and Tunnu Vs. District
Magistrate 2000 (40) ACC 729. Per
contra, Sri Mahendra Pratap submitted
before the court that if we go through the
dossier of the sponsoring authority and
the detention order carefully it cannot be
inferred conclusively that the detaining
authority has not applied his own mind to
the facts of the case. In the dossier the
sponsoring authority had given life
history of the petitioner. However, the
detaining authority in the grounds of
detention has not mentioned the facts
pertaining to the life history of the
petitioner, obviously for the reason that
those facts were not relevant for the
subjective satisfaction of the detaining
authority.
Only
those
facts
were
reproduced which were contained in the
report of Officer Incharge of the police
station and mere fact that the facts giving
rise to the activities of the petitioner
which were mentioned in the dossier have
been repeated in the impugned detention
order by the detaining authority would not
lead to the conclusion that there was total
non application of mind. What the
detaining authority repeated, were the
facts mentioned in the report of the
Officer Incharege of the police station
Kanpur. We ourselves have gone through
the dossier which was sent by the
sponsoring authority to the detaining
authority as well as the grounds of
detention and we find that it cannot be
said that the detaining authority has in the
detention order reproduced verbatim the
language of dossier without applying his
own mind. In the dossier no satisfaction
was recorded whereas in the detention
order the District Magistrate has recorded
his
own
satisfaction
regarding
the
activities of the petitioner which were
prejudicial to the maintenance of public
order. The above referred cases which
have been relied upon by the petitioner
lend some assurance to the contention of
the petitioner's counsel but by reason of
the factual situation being different, are
clearly distinguishable from the facts of
the present case because in all those cases
the court had recorded a categorical
finding that the detaining authority had
reproduced the language of the dossier
verbatim in the detention order without
applying his own mind whereas in the
present case such an inference is not
deducible.

6. We now take up second and third
grounds together. It was argued by Sri
Misra that admittedly in relation to crime
no. 7 of 2001 and 92 of 2001, copies of
F.I.R. of those cases were neither placed
before the detaining authority nor were
furnished to the petitioner while serving
2 All] Mohammad Suleman Vs. State of U.P. through Principal Secretary and others
335
the detention order and accordingly the
order of detention is vitiated on this
ground alone. Reliance was placed on the
decisions in Tushar Thakkar Vs. Union
of India, 1981 SCC (Criminal) 13,
Sardar Gurdeep Singh Vs. Union of
India, AIR 1981 SC 362, State of U.P.
Vs. Kamal Krishna Saini, 1988 SCC
(criminal) 107, M. Ahamedkutty Vs.
Union of India 1990 SCC (Criminal)
258, Ahmad Nassar Vs. State of Tamil
Nadu J.T. 1999 (8) SC, V.C. Mohan Vs.
State of Rajasthan and others 1986
SCC (Criminal) 104. From the above
decisions it emerges that the requisite
subjective satisfaction on the part of the
detaining authority the formation of
which is a condition precedent to the
passing of the detention order will get
vitiated if material or vital facts which
would have a bearing on the issue and
would influence the mind of the detaining
authority one way or the other are either
withheld or suppressed by the sponsoring
authority and not considered by the
detaining authority before issuing the
detention order. It is also clear from the
aforesaid decisions that the detenu has a
right to be furnished with the grounds of
detention alongwith the documents relied
on in order to enable him to make an
effective representation guaranteed under
Article 22 (5) of the Constitution of India.
If copies of vital and material documents
which would be having a bearing on the
satisfaction of the detaining authority
were not furnished to the detenu, that
would be violative of Article 22 (5) of the
Constitution of India and continued
detention of the detenu is vitiated. In the
counter affidavit it could not be disputed
that as far as crime no., 92 of 2001 is
concerned no document such as F.I.R.
copies of statement of witnesses recorded
under Section 161 Cr.P.C. or charge sheet
were either placed before the detaining
authority or were furnished to the
petitioner alongwith the detention order. It
also could not be denied that no copy of
F.I.R. of case crime no. 7 of 2001 was
placed before the detaining authority nor
the same was furnished to the petitioner.

7. Shri Mahendra Pratap, learned
A.G.A. appearing for the respondents,
however, submitted that in the present
case the impugned detention order is
based of five distinct and separate
grounds relating to five different crime
numbers, therefore, the entire detention
order will not stand vitiated even if it be
held that relevant and material documents
pertaining to crime no. 7 of 2001 and 92
of 2001 were neither placed before the
detaining authority nor were supplied to
the petitioner, because each ground of
detention partakes the character of a
separate detention order and in view of
Section 5A of NSA the detention order
could still be maintained on other
grounds. In support of his submission Shri
Mahendra Pratap placed reliance upon a
Nine Judges decision of the Apex Court
in Attorney General for India Vs.
Amratlal Prajivandas and others 1994,
SCC (Criminal) 1325. In the aforesaid
decision it was held that Section 5-A is in
two parts. Where the order of detention is
based on more than one ground, the first
part creates a legal fiction, viz., it must be
deemed that there are as many orders of
detention as there are grounds which
means that each of such orders is an
independent order. The second part of it is
merely clarificatory and explanatory,
which is evident from the fact that it
begins with the word 'accordingly'- apart
from the fact that it is joined to the first
part by the word ' and'. As a result, if it is
found that the ground of detention in
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
336
support of some of the deemed orders is
vague or irrelevant, the same would be
quashed but the remaining deemed order
supported by the relevant ground would
stand. Parliament is competent to create a
legal fiction and it did so in this case.
Article 22 (5) does not in terms or
otherwise prohibit making of more than
one order simultaneously against the same
person, on different grounds. Parliament
is competent to say, by creating a legal
fiction, that where an order of detention is
made on more than one ground, it must be
deemed that there are as many orders of
detention as there are grounds. If this
creation of a legal fiction is competent,
then no question of any inconsistency
between the section and Article 22 (5) can
arise. Had there been no first part, and had
the section consisted only of the second
part, one can understand the contention
that the section is in the teeth of Article
22 (5).

8. From the aforesaid decision and
from a plain language of section 5A of
NSA it is thus clear that where detention
order is based on two or more grounds
each of such ground is an independent
detention order. While examining the
validity of the detention order which is
based on more than one ground, the court
has to examine if detention order is
vitiated on account of legal infirmity of
each ground. In a given case the court
would not quash the detention of the
detenu where it finds that the detention is
in accordance with law on any of the
several grounds upon which detention
order has been passed. For example A is
detained
on
three
separate
and
independent grounds 1,2 and 3. In respect
of grounds no. 1 and 2 the court finds that
relevant and vital documents were not
placed before the detaining authority by
the sponsoring authority but at the same
time comes to the conclusion that all
relevant material had been placed before
the detaining authority in relation to
ground no. 3 and copies thereof had also
been furnished to the detenu and no
prejudice of any kind whatsoever was
caused to the detenu, the court can still
maintain the detention of the detenu
though the same was not maintainable as
far as grounds no. 1 and 2 are concerned.

9. Since in the present case the
detention order is based on five separate
grounds relating to five different crime
numbers it has to be seen and find out if
the detention order stands vitiated or
continued detention of detenu is illegal for
the reason that relevant and material
documents relating to each crime numbers
were not placed before the detaining
authority or were not supplied to the
petitioner thereby depriving him of his
right of representation, enshrined under
Article 22 (5) of the Constitution of India.

10. We now propose to examine the
material placed on record of this writ
petition to find out if the detention order
stands vitiated on the basis of the above
submission made by learned counsel for
the petitioner.

11. The impugned detention order is
based on five separate and independent
grounds. Each ground contained facts of a
particular crime number giving rise to the
activities of the petitioner, which in the
opinion of the detaining authority were
prejudicial to the maintenance of the
public order. Those crime numbers were
91 of 2000, 7 of 2001, 20 of 2001, 39 of
2001 and 92 of 2001.
2 All] Mohammad Suleman Vs. State of U.P. through Principal Secretary and others
337
12. As far as grounds pertaining to
crime no. 7 of 2001 and 92 of 2001 are
concerned undoubtedly they cannot be
sustained as admittedly no copies of the
first information report of these crime
numbers were either placed before the
detaining authority or supplied to the
petitioner.

13. In the detention order it has been
stated that the petitioner is in jail in
connection with crime no. 91 of 2000, 20
of 2001 and 39 of 2001 and he has
already obtained bail in crime no. 91 of
2000 and the petitioner has moved bail
applications in other crime nos. i.e. 20 of
2001 and 39 of 2001 and he was likely to
be released on bail in these cases also. We
now take up these crime numbers
separately.

14. As far as crime no. 91 of 2000
and 20 of 2001 are concerned it has been
stated in the detention order that the
copies of the bail applications moved by
the petitioner are annexed as Annexures
28 and 29. It is, however, noteworthy that
instead of supplying copies of bail
applications moved by the petitioner
before the Sessions Judge, Kanpur Nagar,
the sponsoring authority had placed
before the detaining authority the copies
of bail application moved by co-accused
Mohd. Anwar and copies of the same
were furnished to the petitioner alongwith
the grounds of detention. This fact is
admitted in the supplementary rejoinder
affidavit filed by respondent no. 3 that the
sponsoring authority had placed before
him only the copies of bail applications
moved on behalf of co-accused Mohd.
Anwar and copies of bail applications
moved on behalf of the petitioner before
the Sessions Judge, Kanpur Nagar in the
aforesaid crime numbers were neither
placed before him nor were supplied to
the petitioner. However, it was claimed
that as the grounds raised in the
application of Mohd. Anwar were almost
identical and similar to the grounds of bail
raised in the applications of the petitioner,
non-consideration of his bail applications
and their non supply to the petitioner
would not make any difference as far as
satisfaction of the detaining authority is
concerned. We have ourselves gone
through both the applications which have
been brought on record and find that it
cannot be said that the grounds raised in
the bail applications of the petitioner were
identical to the grounds raised in the bail
application of co-accused Mohd. Anwar.
Once it was mentioned in the report
submitted by the sponsoring authority that
copies of bail applications moved on
behalf of the petitioner in the aforesaid
crime numbers are annexed but those
copies were in fact of the bail applications
of co-accused Mohd. Anwar and not of
the petitioner that fact itself shows how
casually the matter was dealt with by the
detaining authority without application of
his own mind. Had there been application
of mind, the detaining authority would
have
certainly
asked
for
the
bail
applications of the petitioner. Admittedly
the petitioner was only supplied with the
copies of bail applications moved on
behalf of the co-accused Mohd. Anwar
and he was not supplied the copies of his
own bail applications moved before the
Sessions Judge. We have already found
above that the grounds for bail raised in
the bail application of Mohd. Anwar were
different from those raised by the
petitioner in his own application. In the
absence of copies of petitioner's bail
applications and the comments of police
thereon the petitioner was certainly
denied the right of making an effective
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
338
representation and accordingly Article 22
(5) of the Constitution of India has been
violated. In the case of Nandgopal Saha
Vs.
Union
of
India
1988
SCC
(Criminal) 107 copies of statement of
Mrs. Jhunu Rani Saha, the statement of
the petitioner and the documents which
accompanied handwriting expert's opinion
were held to be vital to enable the detenu
to make a proper representation. It was
held that the detenu was denied a fair
opportunity
of
making
effective
representation and accordingly detention
order was quashed.

15. In the case of State of U.P. Vs.
Kamal Kishore Saini (supra) names of the
detenus were not mentioned in the F.I.R.
in respect of incident in ground no. 1 and
the basis of their complicity came to be
known only in the material found in the
course of the investigation. The detenus
were supplied only with the copy of the
F.I.R. and also extract of the charge sheet
and not the statements of the witnesses
recorded under Section 161 Cr.P.C. It was
undisputed that the charge sheet was
subsequently submitted in the court, and
accused persons were furnished with the
copies of the statements of the witnesses
long after the passing of the order of
detention communicating the grounds of
detention. Similarly with regard to ground
no. 3 the application of the co-accused as
well as the statement made in the bail
application filed on behalf of the detenus
alleging that they had been falsely
implicated in the same case and the police
report thereon, were not produced before
the detaining authority before passing of
the detention order. The Apex Court held
that the High Court was justified in
holding that the assertion made in the
return that even if the material had been
placed before the detaining authority he
would not have changed the subjective
satisfaction as this has never been
accepted as correct proposition of law. It
is incumbent to place all the vital
materials before the detaining authority to
enable him to come to a subjective
satisfaction as to the passing of the order
of detention as mandatorily required
under the Act. In this view of the matter
of contention of Shri Mahendra Pratap,
learned A.G.A. cannot be accepted that
even if bail applications of the petitioner
in the aforesaid crime numbers had been
placed before the detaining authority
instead of the bail applications of coaccused Mohd. Anwar that would not
have made any difference so far as the
subjective satisfaction of the detaining
authority was concerned. At a subsequent
stage it cannot be shown that the
subjective satisfaction would not have
changed even if vital, relevant and correct
material would have been placed before
the detaining authority. In the aforesaid
Apex Court decision it was further held
that the order of detention becomes illegal
and bad prior non supply of vital
documents to the detenu to enable him to
make an effective representation against
the grounds of detention and as such his
right
to
make
a
representation as
contemplated under Article 22 (5) of the
Constitution
of
India
is
infringed
rendering his continued detention illegal
and bad.

16. In the present case as far as
detention order based upon grounds
relating to crime nos. 7 of 2001, 92 of
2001, 20 of 2001 and 91 of 2001 is
concerned the same cannot be sustained
for the above mentioned illegalities,
namely, non placement of relevant and
material documents before the detaining
2 All] Mohammad Suleman Vs. State of U.P. through Principal Secretary and others
339
authority and their non supply to the
petitioner.

17. We are now left with the sole
ground which is based upon facts relating
to crime no. 39 of 2001. It is true that if
no infirmity or illegality is found viz a viz
this ground, still the detention order could
be maintained but on facts again we find
that in this case neither the police report
with parawise comments relating to the
grounds raised in the bail application of
the petitioner were placed before the
detaining authority nor were they supplied
to the petitioner. We further find that the
allegations which have been disclosed in
respect of crime no. 39 of 2001 do not
amount to disturbance of public order.
The impugned detention order was passed
for maintenance of public order and not
for preventing from acting in any manner
prejudicial to the security of the State.
Even as per the detention order bail
application moved on behalf of the
petitioner in crime no. 39 of 2001 was
pending before the concerned Sessions
Judge when the impugned order of
detention was passed. However, there was
no material before the detaining authority
to apply his mind and consider whether
the grounds raised in the bail application
moved on behalf of the petitioner had any
truth therein as police report with
parawise comments with regard to the
grounds raised in the bail application had
not been placed before the detaining
authority by the sponsoring authority. Not
only this, bail application in crime no. 39
of 2001 of co-accused Mohd. Anwar had
also been not placed before the detaining
authority.
Since
vital
and
relevant
documents had not been placed before the
detaining authority, the order of detention
stands vitiated on the ground that there
was no proper subjective satisfaction of
the detaining authority.

18. Therefore, for the above reasons
we find that the impugned order of
detention is not sustainable on account of
vital and relevant material having been
not placed before the detaining authority
viz-a-viz each of the five grounds on the
basis of which the impugned detention
order was made. The continued detention
of the petitioner also stands vitiated on
account of the fact that even if each
ground of detention is taken as a separate
order of detention, the petitioner was not
supplied with the relevant documents to
enable
him
to
make
an
effective
representation against each of the grounds
of detention and thereby the right
conferred upon him under Article 22 (5)
of the Constitution of India has been
infringed.

19. In view of what has been
discussed
above,
this
writ
petition
succeeds. The impugned detention order
dated 8.4.2001 stands quashed and set
aside and it is directed that the petitioner
shall be set at liberty forthwith unless
required to be detained in jail in
connection with any other offence in
addition to the impugned detention order.

20. In the circumstances no order as
to costs is made.
---------
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
340
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R. TIWARI, J.

Civil Misc. Writ Petition No. 14520 of 2000

Surendra Nath Singh

...Petitioner
Versus
Deen
Dayal
Upadhyay
Gorakhpur
University and another ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Amrendra Singh

Counsel for the Respondents:
Sri Dilip Gupta
S.C.

Statute "2.(19) of U.P. State Universities
Act, 1973- the Act does not make any
distinction between a full time or part
time teacher- after crossing the age of
60 years, a part time teacher can be
continued only on contract basis, if there
is no staff and if proper teacher is not
selected. This can not give any right to
the appointee to continue on the post
after 60 years.

(Held in para 7).

After crossing the age of 60 year, a part
time teacher can be continued only on
contract basis, if there is no staff and if
proper teacher is not selected. This can
not give any right to the appointee to
continue on the post after 60 years. A
teacher has no right to continue after the
age of 60 years. Only short time contract
can be given after the age of 60 years
without having any right to the post and
such
contract
appointment
may
be
terminated at any time.

(Delivered by Hon'ble M. Katju, J.)

1. Heard Sri Ashok Khare learned
senior counsel for the petitioner and Sri
Dilip
Gupta
for
the
respondentUniversity.

2. The petitioner is a practising
lawyer in the Civil Court, Gorakhpur and
he was also appointed as a lecturer on
purely adhoc basis in the Gorakhpur
University for a period of 6 months by
order dated 5.4.1989, Annexure-1 to the
writ petition, on the fixed emolument of
Rs.1100/- per month. This amount was
subsequently increased to Rs.5000/- per
month.

3. Under Statute 16.24 of the
Gorakhpur University the retirement age
of a teacher of the University is 60 years.
Statue 16.24 states as follows:

"16.24(1) Subject to the provisions of
statutes 16.25 and 16.26, the age of
superannuation of a teacher of the
University governed by the new scale of
pay shall be sixty years.

(2) The age of superannuation of a
teacher of the University not governed by
the new scale of pay shall, subject to
statute 16.25, be sixty years.

(3) No extension in service beyond the
age of superannuation shall be granted to
any
teacher
after
the
date
of
commencement of these Statutes:

4. Thus, whether the teacher of the
University is governed by the new scale
of pay or not his retirement age shall be
60 years.