AJOY NATH RAY, C. J. , ASHOK BHUSHAN, J.

( 1 ) HEARD Sri Raj Kumar Jain, learned Senior Advocate, appearing for the appellant.

( 2 ) THIS appeal has been filed against the judgment and order dated 23rd February, 2005 passed by Honble Mr. Justice Tarun Agarwal dismissing the writ petition on merit.

( 3 ) THE appellant tiled the writ petition challenging the appellate order passed by Deputy inspector General of Police under the provisions of Uttar Pradesh Police Officers of the subordinate Ranks Punishment and Appeal) Rules, 1991 (hereinafter referred to as the Rules) as well as the revisional order passed by Inspector General of Police under the Rules. The Rules have been framed under the Police Act, 1861. This special appeal has been filed under Chapter viii Rule 5 of the Rules of the Court. The question first to be considered is as to whether this appeal is barred under Chapter VIII Rule 5 of the Rules of the Court ?

( 4 ) CHAPTER VIII Rule 5 of the Rules of the Court is extracted below: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 exorcise of revisional jurisdiction or in the exercise of its 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. ]"

( 5 ) THE orders, which were under challenge before the learned single Judge were orders passed by Officers of the Government made in exercise of appellate and revisional jurisdiction under the central Act with respect to matter enumerated in the Concurrent List in the Seventh Schedule of the Constitution. The Rules have been framed under the Police Act, 1891. The submission, which has been made by Sri Jain, is that the appellate/revisional jurisdiction has not been provided in the Act, hence the bar under Chapter VIII Rule 5 of the Rules of the Court will not apply. The submission is that according to Chapter VIII Rule 5 of the Rules of the Court for applicability of the bar the appellate revisional forum should be in the Act itself. His submission is that when the appellate/revisional forum is not provided under the Act and is under Rule, the bar will not apply.

( 6 ) THE submission which is being raised by Sri Jain has been elaborately considered by a division Bench of this Court in (2003)1 UPLBEC 496; Vajara Yojna Seed Farm, Kalyanpur and Ors. v. Presiding Officer, Labour Court, U. P. , Kanpur and Anr. The Division Bench while repelling the above submission, observed following in paragraph 56: -.

"56. . . The last submission of counsel for the appellant is that since appellate power has not been exercised by the Joint Director of Education under the U. P. Act but under regulations framed under the Act, bar of Chapter VIII, Rule 5 of the Rules of the Court will not be attracted needs consideration. The words used in Chapter VIII, Rule 5 of the Rules of the Court refers to the words "in the exercise of purported exercise of appellate or revisional jurisdiction under any such Act. " The regulations under which appellate power has been exercised by the Joint Director has been framed under the provisions of U. P. Intermediate Education Act, 1921. The pertinent words under Chapter VIII Rule 5 of the Rules of the Court are "

Click Here to Read the rest of this document