IMPORTANT POINT
Where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India and the party chooses to file his application under both these articles in fairness of justice to party and in order not to deprive him of valuable right of appeal the court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the order of a Division Bench of the Bombay High Court dismissing the Letters Patent Appeal filed by the appellant. Writ Petition filed by the appellant was dismissed on the ground that the same was not maintainable.

3. Learned counsel for the appellant submitted that the impugned order of the Division Bench is clearly unsustainable. Reference is made to Rules 3 & 18 of the Bombay High Court Appellate Side Rules, 1960 (in short the ‘Rules’) with the amended Letters Patent of the High Court of Bombay, 1865 (in short the ‘Letters Patent’). It is submitted that the Division Bench did not take note of what has been stated by several judgments of this Court.

4. Learned counsel for the respondent on the other hand supported the impugned judgment of the High Court.

5. Rules 3, 18(41) and the proviso 18(44) read as follows:

“3. Appeal to be placed before Division Bench for admission - Appeals under Clause 15 of the Letters Patent shall be placed for admission before a Division Bench.

18. Single Judge’s powers to finally dispose of applications under Article 226 or 227 - Notwithstanding anything contained in Rule 1,4 and 17 of this Chapter applications under Article 226 or under Article 227 of the Constitution for applications styled as applications under Article 227 of the Constitution read with Article 226 of the Constitution arising out of :

x x x

(41) The order passed under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977.

(44) Orders passed by the different Committees constituted by the State Government for verification of the claims of Scheduled Cast and Scheduled Tribe candidates, may be heard and finally disposed or by a single judge to be appointed in this behalf by the Chief Justice.

Provided when the matter in dispute is or relates to the challenge to the validity of any statute or any rules or regulations made thereunder, such applications shall be heard and disposed off by a Division Bench to be appointed by the Chief Justice.”

6. In Umaji Keshao Meshram v. Radhikabai,1 [1986 Supp. SCC 401], Sushilabai Laxminarayan Mudliyar & Ors. v. Nihalchand Waghajibhai Shaha & Ors.,2 [1993 Supp. (1) SCC 11] and Mavji C. Lakum v. Central Bank of India,3 [2008(7) SCALE 32] similar questions were considered.

7. In Sushilabai’s case (supra) it was noted at paragraph 4 as follows:

“The Full Bench of the Bombay High Court wrongly understood the above Umaji Kesho Meshram case (supra). In Umaji case (supra) it was clearly held that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India and the party chooses to file his application under both these articles in fairness of justice to party and in order not to deprive him of valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Rule 18 of the Bombay High Court Appellate Side Rules read with clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a judgment of the learned Single Judge passed on a writ petition under Article 226 of the Constitution. In the present case the Division Bench was clearly wrong in holding that the appeal was not maintainable against the order of the learned Single Judge. In these circumstances we set aside the impugned order of the Division Bench and direct that the Letters Patent Appeal filed against the judgment of the learned Single Judge would now be heard and decided on merits. In view of the fact that it is an old matter we request the High Court to decide the Letters Patent Appeal within six m