Allahabad High Court
Yogendra Pratap Shahi vs State Of U.P. And 4 Others on 21 December, 2022
Bench: Manoj Misra, Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 29
Case :- SPECIAL APPEAL No. - 830 of 2022
Appellant :- Yogendra Pratap Shahi
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Mohammad Umar Khan
Counsel for Respondent :- C.S.C.
Hon'ble Manoj Misra,J.
Hon'ble Vikas Budhwar,J.
1. Heard Mohammad Umar Khan learned counsel for the appellants and the learned Standing Counsel for the respondents.
2. This intra-court appeal has been filed against the judgment and order dated 24.11.2022 passed by the learned Single Judge in Writ-A No. 1677 of 2020, thereby dismissing the petition of the writ petitioner (the appellant herein) filed against three orders, namely, the order dated 20.12.1993 dismissing him from service, the order dated 16.11.2016 rejecting his appeal and the order dated 23.12.2019 dismissing his revision.
3. The learned Standing Counsel has raised a preliminary objection with regard to the maintainability of this intra-court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules on the ground that no intra-court appeal would lie thereunder wherein the writ-court exercises its jurisdiction against an order of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or Central Act with respect to any of the matters enumerated in the State list or the Concurrent List.
4. To demonstrate that the aforesaid preliminary objection is sustainable, the learned Standing Counsel has shown to us that the order challenged in the writ petition was passed in exercise of the powers under U.P. Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (for short 1991 Rules) which have been framed in exercise of the powers under sub-sections (2) and (3) of Section 46 read with Sections 2 and 7 of the Police Act, 1861. It has been submitted that since power to legislate in matters pertaining to police falls in the State list, the intra-court appeal would not be maintainable.
5. Chapter VIII Rule 5 of the Rule of Court provides as follows:
"5. Special appeal :- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction 66 [or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award--(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."
6. Interpreting the aforesaid provision, the Supreme Court in State of U.P. vs. Madhav Prasad Sharma (2011) 2 SCC 212, in the context of maintainability of the intra-court appeal against the order of Single Judge passed in a writ petition against order passed in a departmental appeal preferred under 1991 Rules, in paragraphs 12 and 13, has observed as follows:
"12. Against the order of the learned single Judge, the State Government filed Special Appeal No. 614 of 2009 before the Division Bench of the High Court. Rule 5 of Chapter VIII of Allahabad High Court Rules, 1952 speaks about Special Appeal which reads as under:-
"Special Appeal.--An appeal shall lie to the Court from a judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."
13. It is fairly admitted that in view of the fact that against the order of termination the delinquent availed departmental appeal to the DIG, after the order of the learned single Judge no further appeal by way of special appeal before the Division Bench would lie. The materials placed and in view of the fact that the order of the SSP was considered and disposed of by the Appellate Authority, i.e., DIG and also of the fact that the order impugned in the writ petition was passed in exercise of appellate jurisdiction in terms of The Uttar Pradesh Subordinate Police Officers/Employees (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "the Rules"), we concur with the conclusion arrived at by the Division Bench of the High Court in the impugned order. ......."
7. In view of the aforesaid position, we hold this appeal not maintainable and the same is dismissed as such.
Order Date :- 21.12.2022
N.S.Rathour
