Continuous and long service can justify treating an appointment as substantively appointed, and impugned orders based on incorrect facts can be quashed.

JUDGMENT :

1. Heard Shri Shivaji Shukla, learned counsel for petitioners, Shri Satrohan Lal, learned Standing Counsel for the State and Shri Savitra Vardhan Singh, learned counsel for the University.

2. A supplementary affidavit has been filed by the Additional Chief Secretary, Higher Education Department dated 20.07.2022 in compliance of the order of this Court dated 23.05.2022 wherein she has stated that the impugned orders are not covered by the Government Order dated 04.12.2010 keeping in abeyance the orders passed by Dr. Mian Jaan, the then Director, Higher Education and that the impugned orders are correct and legal and are unaffected by the disciplinary proceedings against Shri Mian Jaan and the Government Order dated 04.12.2010.

3. The facts of the case in brief are that the petitioner no. 2 was appointed as Lecturer in the Department of Chemistry in Jai Narain Degree College which is an associate college of the Lucknow University on 17.07.1977 based on a Selection Committee constituted under Section 31(4)(d) of the U.P. State Universities Act, 1973. The appointment was made against a short term vacancy/leave vacancy having arisen on account of the Lecturer Shri S.P. Gaur having gone on leave. Such appointment was approved by the Vice-Chancellor on 14.10.1977. The petitioner joined against the said vacancy on 15.10.1977. While working against the said vacancy the petitioner no. 2 was adjusted against another leave vacancy of Dr. V.K. Tandon on 04.11.1978 in pursuance to a resolution of the Managing Committee of the College. Shri S.P. Gaur, needless to say, joined on back on his post on 10.09.1979, however, this is not very relevant, as, prior to it i.e. on 04.11.1978 itself petitioner no. 2 was adjusted against another leave vacancy of Dr. V.K. Tandon. On 21.08.1979 the Acting Principal of the College gave a notice to the petitioner no. 2 that he would have to relinquish Office on 08.09.1979 in anticipation of the fact that Dr. V.K. Tandon would join on his post on 08.09.1979. The notice itself mentions about the possibility of Shri Tandon's joining accordingly. Based on this notice petitioner no. 2 filed a suit for permanent injunction wherein he sought temporary injunction, on 07.09.1979. A temporary injunction was granted on 13.09.1979 staying operation of the notice dated 21.08.1979 on the ground that the notice had been given by the Principal, whereas, the Appointing Authority was the Secretary Manager but with a caveat that termination as permissible under law had not been stayed. This temporary injunction order was vacated by the trial Court on 10.11.1979 which gave rise to a First Appeal From Order being filed by the petitioner no. 2 wherein an interim order was passed on 04.12.1979 by this High Court, which reads as under:-

"Issue notice. In the mean time the order dated 21-08-1979 is suspended and opposite parties are 2 and 3 restrained from giving effect to the order dated 21 August 1979 as it has been brought to the notice of this court that the impugned order has been issued by the Principal while it was the managing committee that had appointed the appellant. It is, however clarified that it would be open to the committee of Management to consider the case of appellant in accordance with the Act and Statues framed their under. Until such order is passed the applicant will be entitled to receive the Salary. It will be open to the respondents to take or not to take work from the applicant."

4. At this stage learned counsel for petitioners invites attention of the Court to a document annexed as Annexure No. RA-2. According to which he was paid arrears of salary for the period 04.12.1979 to 20.02.1980 but not for the period thereafter.

5. It is not out of place to mention that from 04.12.1979 till 16.01.1987 the petitioner was neither allowed to work in the college nor was paid salary. However, subsequently on 14.01.1987 a compromise was arrived at between the petitioner no. 2 and the petitioner no. 1 in the Suit f