Hon'ble Attau Rahman Masoodi,J.
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.
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.
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.
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.
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.
We have gone through the judgment of the learned Single Judge as well and the grounds that have been raised in the present appeal.
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.
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.
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 ½ 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.
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.
The appeal is dismissed with Rs.10,000/- as costs.
Order Date :- 11.1.2016 Anand Sri./-