Honble R.K. Agrawal, J.—Regretting their inability to agree with the view taken by a coordinate Bench of this Court in the case of Ram Dhyan Singh v. State of U.P. and others, 2004(3) AWC 2559, and being of the opinion that the aforesaid decision requires reconsideration by a larger Bench, particularly in view of another coordinate Bench decision in the case of Vajara Yojna Seed Farm, Kalyanpur (M/s.) and others v. Presiding Officer, Labour Court II, U.P., Kanpur and another, 2003(1) ESC 492, a Division Bench has referred the following question for decision by a larger Bench :

“Whether a special appeal under the provisions of Rule 5 of Chapter VIII of the Rules of the Court lies in a case where the judgment has been given by a learned Single Judge in a writ petition directed against an order passed in an appeal under paragraph 28 of the U.P. Scheduled Commodities Distribution Order, 2004?”

Facts of the Case

2. The appellant was having a licence for fair price shop in Gram Panchayat Lahilpar alias Ratanpura, Nyay Panchayat Pangara, Vikas Kshetra Deoria, Tehsil and District Deoria. The licence of the appellant was suspended on 14th July, 2004. He was called upon to show cause and produce the documents. An enquiry was held in the matter. The Sub Divisional Magistrate, Sadar, Deoria vide order dated 13th June, 2007 cancelled the appellant’s fair price shop licence. The appellant preferred an appeal before the Commissioner, Gorakhpur Division, Gorakhpur being Appeal No. 53/D of 2007. The Commissioner, vide order dated 20th December, 2007 had dismissed the said appeal. Thereafter the appellant preferred a writ petition being CMWP No. 20138 of 2008, which has been dismissed vide judgment and order dated 26.11.2008 by a learned Single Judge. The judgment and order dated 26.11.2008 has been challenged by means of the present appeal.

3. At the time of admission of the appeal a preliminary objection was raised by the learned Standing Counsel regarding maintainability of the special appeal against the judgment and order dated 26th November, 2008 passed by the learned Single Judge. The objection was based on the ground that the writ petition was filed against the appellate order passed by the Commissioner, Gorakhpur Division, Gorakhpur and, therefore, the special appeal was not maintainable under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, hereinafter referred to as “the Rules”. Reliance was placed on a Division Bench decision of this Court in Vajara Yojna Seed Farm, Kalyanpur v. Presiding Officer, Labour Court II, U.P. Kanpur and another, (2003)1 UPLBEC 496. Learned counsel for the appellant, however, submitted that the special appeal was maintainable as the appellate jurisdiction exercised by the Commissioner was not under the provisions of any U.P. Act or any Central Act referable to the entries in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India and reliance was placed on another Division Bench decision of this Court in the case of Ram Dhyan Singh v. State of U.P. and others, 2004 (3) AWC 2559. The Division Bench after considering the matter was prima facie of the view that an appeal provided under any Government Order is, in essence, an appeal under the provisions of the Act. Maintaining all norms and judicial propriety instead of taking a view contrary to that taken by a coordinate Bench in the case of Ram Dhyan Singh (supra), it decided to refer the aforementioned question for decision by a larger Bench.

Provisions of Law

4. Chapter VIII Rule 5 of the Rules :

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 [or in the exerci