# The State of U.P. & Ors v. Mahila Mahavidyalaya Kidwai Nagar Kanpur 6389 (M/S) 2011

- **Citation:** (2016) 1 ILRA 2011
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-11
- **Case number:** Special Appeal Defective No. 610 of 2015
- **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-ors-v-mahila-mahavidyalaya-kidwai-nagar-kanpur-6389-m-s-2011-43407
- **Pages:** 3

## Headnote

High Court Rules-1952-Chapter VIII Rule5-Special Appeal -3 1⁄2 years unexplained
delay-Learned Single Judge considering
pure
legal
aspect-quashed
the
G.O.
06.01.11 imposing ban on appointment of
class 4th employee in Degree and Post
Degree College affiliated to universityignoring
statute-meaning
therebyoverriding legislation
-such practice of
litigation-can not be appreciated-appeal
dismissed with cost of Rs. 10,000/-.
Held: Para-9
We are also surprised and we do not find
any explanation that once the State itself
had implemented the judgment of the
learned Single Judge way back in the year
2013 it had every opportunity to assail
any such orders two years ago. As noted
above the appeal has been filed after 3 1⁄2
years, moreso when the statutes have
been amended on 24.2.2015. The appeal
appears to have been prepared only to
cover
up
the
actions
under
the
Government order that was sought to be
enforced by the appellant and that had
outlived itself for the reasons given by the
learned Single Judge, both on legal and
factual grounds. The aforesaid exercise of
filing
of
the
appeal
by
the
State,
therefore, at this belated stage has
neither been validly explained on delay
nor is there any plausible argument so as
to find out a ray of hope on the merits of
the claim as well. Consequently, for all
the reasons aforesaid this exercise of
drafting and filing of the appeal does not
appear to be for protecting the interest of
the State or raising a valid challenge to
the learned Single Judge judgement on
any legal grounds. The entire exercise of
filing of the appeal appears to have been
raised
on
the
asking
of
the
legal
department without there being any
cogent
ground
available
to
raise
a
challenge and without there being any
plausible explanation for the delay.

## Text

1 All. The State of U.P. & Ors. Vs. Mahila Mahavidyalaya Kidwai Nagar Kanpur 6389 (M/S) 2011
23
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.01.2016
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Special Appeal Defective No. 610 of 2015
The State of U.P. & Ors. ...Appellants
Versus
Mahila Mahavidyalaya Kidwai Nagar Kanpur
6389 (M/S) 2011 .
...Respondent
Counsel for the Petitioner:
C.S.C.
Counsel for the Respondents:
Anurag Verma, Pali Anural
High Court Rules-1952-Chapter VIII Rule5-Special Appeal -3 1⁄2 years unexplained
delay-Learned Single Judge considering
pure
legal
aspect-quashed
the
G.O.
06.01.11 imposing ban on appointment of
class 4th employee in Degree and Post
Degree College affiliated to universityignoring
statute-meaning
therebyoverriding legislation
-such practice of
litigation-can not be appreciated-appeal
dismissed with cost of Rs. 10,000/-.
Held: Para-9
We are also surprised and we do not find
any explanation that once the State itself
had implemented the judgment of the
learned Single Judge way back in the year
2013 it had every opportunity to assail
any such orders two years ago. As noted
above the appeal has been filed after 3 1⁄2
years, moreso when the statutes have
been amended on 24.2.2015. The appeal
appears to have been prepared only to
cover
up
the
actions
under
the
Government order that was sought to be
enforced by the appellant and that had
outlived itself for the reasons given by the
learned Single Judge, both on legal and
factual grounds. The aforesaid exercise of
filing
of
the
appeal
by
the
State,
therefore, at this belated stage has
neither been validly explained on delay
nor is there any plausible argument so as
to find out a ray of hope on the merits of
the claim as well. Consequently, for all
the reasons aforesaid this exercise of
drafting and filing of the appeal does not
appear to be for protecting the interest of
the State or raising a valid challenge to
the learned Single Judge judgement on
any legal grounds. The entire exercise of
filing of the appeal appears to have been
raised
on
the
asking
of
the
legal
department without there being any
cogent
ground
available
to
raise
a
challenge and without there being any
plausible explanation for the delay.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. This highly belated appeal has
been filed by the State. It is reported to be
beyond time by 3 years 2 months and 17
days.
2. In addition to the fact that there is
an inordinate and inexcusable delay, we
further find that the explanation set up is
not worth accepting and is an effort made
on behalf of the State to reopen an issue
that does not deserve to be reopened at all
on any valid legal principle and on merits
as well.
3. The appeal had been taken up by
us earlier and on 5.1.2016 a request was
made on behalf of the State that the
appeal be taken up on 6.1.2015 to enable
the learned Advocate General to appear in
the matter. Today, again an adjournment
was being sought, but we do not find any
good
reason
to
grant
any
such
accommodation in this highly belated and
incompetent appeal nor is there any
reason to entertain the same otherwise as
well.
24
 INDIAN LAW REPORTS ALLAHABAD SERIES
4. A group of writ petitions were
decided together by the learned Single
Judge on 6.9.2012 after having discussed
the entire legal provisions, the case law
touching the issue and also the stand
taken by the appellant State Government
vis-a-vis the selection and appointment
against class-IV sanctioned posts in
institutions, namely, Degree colleges
affiliated and associated to any University
governed by the provisions of U.P. State
University Act, 1973. The learned Single
Judge found that the direction for
appointment against class-IV posts by
outsourcing would not be permissible so
long as the provisions of the 1973 Act
remain intact, inasmuch as a government
order being an executive instruction
cannot override legislation. The learned
Single Judge however left it open to the
State to bring about any amendment in the
first statutes of the respective universities
to which the petitioner colleges were
affiliated.
5. The learned Single Judge also
found the impugned action amounting to a
complete
ban
being
imposed
for
appointment of class-IV employees in
terms of the government order dated
6.1.2011 that was impermissible.
6. We have gone through the
judgment of the learned Single Judge as
well and the grounds that have been
raised in the present appeal.
7. Sri Srivastava, learned Additional
Chief Standing Counsel, has vehemently
argued and pressed the grounds taken in
the appeal, particularly, paragraphs no.1,
2 and 3 to urge that since it was a policy
decision to fill up posts by outsourcing,
the government order even though in the
shape of an executive instruction was
traceable to the powers under the U.P.
State Universities Act, 1973 and as such
the same could not have been struck
down. Learned counsel submits that this
policy decision was taken after due
deliberations in order to engage skilled
and
semi
skilled
workers
as
in
government departments in order to
enforce austerity measurements.
8. There are two relevant informations
that do not appear to be disputed. Firstly that
as entailed in the judgment of the learned
Single Judge, the statutes have been
amended on 24.2.2015. This fact has
nowhere been stated in the entire appeal. The
second aspect is that the impugned judgment
of the learned Single Judge has been
implemented subject to any further orders
being passed in the writ petitions or any
decision taken in appeal by a higher court.
The said orders dated 31.7.2013 in the case
of two institutions, namely, D.B.S. College
and D.A.V. College who were the petitioners
before the learned Single Judge have been
produced by the learned counsel for the
respondent-Institutions to contend that this
fact has also not been disclosed in the appeal
and the appeal appears to have been filed for
some other purpose so as to invite an adverse
finding somehow the other.
9. We are also surprised and we do not
find any explanation that once the State itself
had implemented the judgment of the learned
Single Judge way back in the year 2013 it
had every opportunity to assail any such
orders two years ago. As noted above the
appeal has been filed after 3 1⁄2 years, moreso
when the statutes have been amended on
24.2.2015. The appeal appears to have been
prepared only to cover up the actions under
the Government order that was sought to be
enforced by the appellant and that had
outlived itself for the reasons given by the
1 All.
Abhishek Tripathi Vs. State of U.P. & Ors.
25
learned Single Judge, both on legal and
factual grounds. The aforesaid exercise of
filing of the appeal by the State, therefore, at
this belated stage has neither been validly
explained on delay nor is there any plausible
argument so as to find out a ray of hope on
the
merits
of
the
claim
as
well.
Consequently, for all the reasons aforesaid
this exercise of drafting and filing of the
appeal does not appear to be for protecting
the interest of the State or raising a valid
challenge to the learned Single Judge
judgement on any legal grounds. The entire
exercise of filing of the appeal appears to
have been raised on the asking of the legal
department without there being any cogent
ground available to raise a challenge and
without there being any plausible explanation
for the delay.
10. We cannot appreciate such
litigations being encouraged by the State
when the courts are already filled with a
heavy docket of pendency. Adding a
litigation which cannot bear any results
and that too even in a highly belated
manner therefore cannot be appreciated.
11. The appeal is dismissed with
Rs.10,000/- as costs.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SHRI NARAYAN SHUKLA, J.
Writ Petition No. 655 (S/S) of 2014
Abhishek Tripathi
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Jay Krishna Shukla, Sri Rama Pati
Shukla, Sri HGS Parihar, Ms. Meenakshi
Singh, Sri Ramesh Pandey
Counsel for the Respondents:
C.S.C., Sri S.K. Yadav Warshi, Sri H.P.
Srivastava
Uttar Pradesh Intermediate Education Act1921-Section 16-E-ii-Ad-hoc appointment
of teachers-except on recommendation of
board-no appointment can be made-after
enforcement of Act 1982-in case of
delay-management
can
appoint
for
period not exceeding six months or till
end of academic session-view taken in
Sanjay Singh case not be upheld as
laying down correct law-overruled-but
judgment in Pradeep Kumar upheld.
Held: Para-49
For these reasons, we have come to the
conclusion that the view of the learned
Single Judge in Sanjay Singh's case (supra)
cannot be upheld as laying down the correct
position in law. The view of the learned
Single
Judge
shall
stand,
accordingly,
overruled. The judgment in Pradeep Kumar
(supra) is upheld subject to the principles
which, we have enunciated in this judgment.
Case Law discussed:
(2013) 1 UPLBEC 758; Writ-A No. 22520 of
2013(decided on 1 May 2013); 2010 (28) LCD
1375; (1995) 6 SCC 749; 2015 (33) LCD 2402;
(1997) 2 UPLBEC 1329; 1994 (3) UPLBEC
1551; (1996) 10 SCC 62; (2008) 5 SCC 241;
(2010) 11 SCC 694; (2009) 15 SCC 436;
(2008) 7 SCC 153; (2008) 17 SCC 617; (2010)
4 SCC 393; (2011) 10 SCC 259.
(Delivered by Hon'ble D. Y Chandrachud, C.J.)
The reference
1.
The present reference before the
Division Bench has arisen from a referring
order dated 3 February 2014 of a learned
Single Judge. Noticing a conflict between two
judgments of the learned Single Judges of this