- (1.) D. P. Singh, J. Heard learned Counsel for the parties.
(2.) PLEADINGS are complete and with the consent of the parties, this petition is being disposed of finally under the Rules of the Court. Ratan Sen Degree College, Bansi District Siddharth Nagar (hereinafter referred to as the College) is an aided and recognized Degree College affiliated to Gorakhpur University now known as Deen Dayal Upadhyaya, Gorakhpur Univer sity, Gorakhpur. The petitioner was appointed as Deputy Librarian in the College by the Management vide its order dated 10th January, 1977 and joined on 152,1977, thereafter, his services were confirmed vide resolution of the Management dated 14. 11. 1981. A post of Hindi lecturer fell vacant in the College and since the peti tioner was duly qualified he applied and appeared before the Selection Commit tee and was duly selected and appointed and his appointment was approved by the Vice-Chancellor on ad hoc basis till the regular incumbent selected from the Commission joins vide his order dated 2. 11. 1991. it is further pleaded that he applied for leave without pay from the post of Deputy Librarian which was duly sanctioned and he continued to work as lecturer in Hindi and received salary of that post. After expiry of his leave period he reverted to the post of Deputy Librar ian and on the direction of the Management through its letter dated 31. 10. 1996 he joined on 1. 11. 1996 on that post. He continued to get his salary till May, 1997 but thereafter his salary was withheld and on enquiry it was found that on the oral directions of the District Inspector of Schools, the salary has been withheld. In spite of representing his case to various authorities including the Manager of the College, who was a sitting M. L. A. , no action was forthcoming and thus he ap proached the Director of Higher Education. The Director after examining the records found that the petitioner was working on stop gap arrangement on ad hoc basis on the post of lecturer and had also been granted leave without pay from the post of Deputy Librarian, he issued directions vide his order dated 25. 3. 2000 that the petitioner was entitled for salary from the post of Deputy librarian and accordingly, directed the Deputy Inspector of Schools to pay current as well as the arrears of salary. On the insistence of the Management, he also sought the advice of the D. G. C. (Civil) which went in favour of the petitioner. Nevertheless, the salary was not paid in spite of the directions of the Regional Higher Education Officer on the premise that the salary bills we're not being forwarded by the Management. When further action was sought to be taken, the present impugned resolution dated , 24. 9. 2000 and the order of termination dated 25. 9. 2000 has been passed holding that the petitioner was appointed against a non- existent post and that too without recourse to the procedure provided under Chapter XXIII of the Statutes arid, there fore, the initial appointment of the petitioner was void and, therefore, his services stood terminated. Learned Counsel for the petitioner has urged that the conditions of his service and the qualifications of the post of Deputy Librarian were governed by a Government order dated 3rd of May, 1968and not under Chapter XXIII of the First Statutes of the Gorakhpur University. ''
(3.) CHAPTER XXIII of the Statutes governs the conditions of service of non teach ing staff of affiliated Degree Colleges and was inserted in the Statute book w. e. f. 11th May, 1977 but it is evident from the record that the petitioner was appointed prior to the aforesaid insertion. Therefore, recourse to CHAPTER XXIII could not have been taken by the Management as there is nothing to show that the insertion was retrospective in operation and neither there is any such suggestion on behalf of the Management. . It is evident from the extract of the Pay Commission that the Government order dated 3rd May, 1968 categorised the affiliated Degree Colleges into three categories. The College was placed in the second category where students en rolled were between 1000 to 1500 and such College was entitled to a post of Deputy librarian. The Government order also prescribes the qualification for the post These factual allegations to that effect in paragraphs 5 to 7of the writ peti tion that in pursuance of the aforesaid Government order a post of Deputy librar ian stood sanctioned on which the petitioner was appointed, has not been specifi cally denied in the counter affidavit. However, even assuming for the sake of argu ment that the appointment of the petitioner was irregular, but is admitted to the parties that a post of Deputy Librarian was formally sanctioned vide order dated 30. 1. 1978" on temporary basis which was extended from time to time and the post was made permanent w. e. f. 1. 7. 1980 vide an order of the Director dated 10. 10. 1980 and, therefore, the said irregularity stood cured once the post was formally sanctioned, ft has to be borne in mind that this objection was raised on the eve of his retirement and after nearly 25 years of the appointment of the petitioner and after his services were duly confirmed and-he was being extended all the benefits of a regular appointee for all these-years. The Apex Court in the case of Ms. Shainda Hasan v. State of U. P, A. I. R -. 1990 S. C. 1381 and later in H. C. Puttaswamy y. The Hon'ble Chief Justice of Karnataka High Court, A. I. R. 1991 S. Q. 295, has held that even though the initial appointment may have been irregular or invalid but as the incumbent had continued for 16 and 10 years, re spectively, they would be deemed to be regular appointee. Examined from this angle also, the action of the Management cannot be sustained.;