R.A. Sharma, J. - (1.) APPELLANT was appointed as a clerk in 1971 in a recognised Intermediate College. In 1978 the District Inspector of Schools (hereinafter referred to as the D.T.O.S.) directed the Management of the College to take necessary action against the appellant as he was appointed in violation of Regulation 4 of Chapter III framed under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Act). Pursuant to this order of D.I.O.S. the Managing Committee terminated the service of the appellant, vide order dated 8.8.1978, after giving him three months' notice. Being aggrieved, the appellant filed a writ petition before this court in 1978, in which interim order was granted. The stay order was later on confirmed after exchange of affidavits by the parties. However, the writ petition was dismissed by the learned Single judge, vide judgment dated 6.8.1991 on the ground that the appellant's appointment was in violation of Regulation 4 of Chapter III, framed under the Act and was, as such, illegal, against which this appeal has been filed by the appellant. Regulation 4 of Chapter III is reproduced below: "4. No teacher shall be appointed whether a temporary or clear vacancy in an institution who is related to any member of the Committee of Management or the Principal or the Head Master, nor shall a Headmaster or Principal be appointed" in an institution who is related to any member of the committee of Management. The Regulation prohibits the appointment of any Teacher, Principal or Headmaster in an institution who is related to any member of the Committee of Management. On the face of it this Regulation does not cover the case of a clerk. But Regulation 22 of the same Chapter has laid down that the appointment, probation and confirmation of clerks shall mutatis mutandis be governed by Regulations 1, 4 to 15 and 21. Thus the prohibition contained in Regulation 4 against the appointment of a person who is related to a member of the Committee of management, has been extended to the clerks also. Appointment of the appellant, as such, was obviously in breach of Regulation 4, because at the time of his appointment his father was member of the Managing Committee. The appellant has worked in the institution right from 1971 to 1978 when his service was terminated. Order of termination was stayed by this Court, on account of which appellant has continued to work right upto 1991, when his writ petition was dismissed. He has, thus, worked for about 20 years. The question that is required to be decided by this, court is as to whether an employee, who has worked for about 20 years should be permitted to be removed on the ground that his initial appointment was bad. Learned counsel for the appellant, Sri R.N. Singh, has contented that it will be highly unfair and unjust to permit removal of an employee after 20 years. In support of his submission he has placed reliance on Committee of Management v. District inspector of Schools, 1990 (1) U.P.L.B.E.C. 189, Smt. Rani Srivastava v. State of U.P. and others : 1990 (1) U.P.L.B.E.C. 425 and Dr. M.S. Mudhol v. S.D. Halegkar : 1993 (2) Education Service cases 245 (SC), Sri. R.K. Kakkar, learned counsel for respondent, on the other hand, has contended that the appointment of the appellant was void, as such, this court should not interfere with the order of termination of his service.
(2.) IT is true that the appointment of the appellant was in violation of Regulation 4 of Chapter III and was as such, illegal, but he has worked in the institution from 1971 to 1978. When his service was terminated. But this order of termination was stayed by this Court, on account of which he continued to work upto the time when his writ petition was dismissed in August, 1991. It will be highly unfair to remove a person from service after about 20 years, on the ground that his initial appointment was illegal. Division Bench of this Court in Committee of Management v. District Inspector of Schools, (Supra) has held that it will be unfair and unjust to un -settle the career of an employee who has worked for about eight years. In Smt. Rani Srivastava v. State of U.P. (Supra) another Division bench did not permit the appointment of head mistress to be put to an end after five years, even though there was infirmity in making her appointment. Supreme Court in Dr. M.S. Mudhol v. S.D. Halegkar (Supra) has observed that it would be undesirable to disturb a Principal after 12 years on the ground that he was not eligible at the time of his appointment, because it would be iniquitous to make him suffer after such a long time. That apart, there was misapprehension about the applicability of Regulation 4 of Chapter III, to the clerks. This misapprehension was on account of the language of Regulation 4 which confined its operation to the Principal, Teachers and Headmaster only. Even this court in Bhopal Singh v. Deputy Director of Education and others : 1983 U.P.L.B.C. 597 was of the view that upto 1975, Intermediate Education Act did not contain any provision relating to the clerks. It is true that this court did not notice Regulation 22 which made provisions of Regulations 1, 4 to 15 and 21 applicable to the clerks also. Such misapprehension might have been in the mind of the Committee of Management which appointed the appellant. Although such misapprehension was unjustified in view of Regulation 22, but there will be no justification now to un -settle the appellant, who has worked in the institution for the last about 20 years. For the reasons given above this appeal is allowed. The judgment of learned Single Judge is set aside. The appellant is directed to be re -instated with full salary for the period during which he could not work after the decision of the learned Single Judge.;