By the Court.—This intra Court appeal under the Rules of the Court is directed against the order dated 19.2.2016 passed by learned single Judge on writ petition No. 7640 of 2006 filed by appellants calling for a counter-affidavit from the respondents within four weeks and connecting the writ petition with another writ petition No. 64917 of 2014, The order under challenge reads as under :

“Heard Shri Alok Mishra, learned counsel for the petitioner, Shri Indra Raj Singh, who has filed caveat application on behalf of respondents No. 5 to 22 and Shri Vikram Bahadur Yadav for the respondents No. 1 to 4.

All the respondents may file counter-affidavit within four weeks.

List thereafter

Connect with W. P. “A” No. 64917 of 2014 (Rakesh Kumar Lal and others v. State of U.P. and others)”

2. Learned counsel for the appellants submits that denial to decide the stay application by the learned single Judge adversely affects the rights of the petitioner-appellants for being regularized in service according to service rules resulting in serious irreparable loss. It is further submitted that though the order on the face of record amounts to procedural order passed in progression of the case but it is a trappings of finality of the judgment as the same would ultimately lead to the writ petition becoming infructuous.

3. Writ petition was filed by the appellants challenging the order dated 6.1.2016 passed by Commissioner, Basti Division, Basti according approval to the creation of 18 posts of Seasonal Collection Amin and peon and consequential order dated 7.1.2016 passed by District Magistrate, Basti. Appellants-petitioner averred in the writ petition that they are fully eligible for substantive appointment on the post of Seasonal Collection Amin and the reservation policy was not followed. Learned single Judge vide the aforesaid quoted order while entertaining the writ petition called for a counter-affidavit and connected the case with an earlier pending writ petition No. 64917 of 2014 filed by the petitioners challenging the regularization of 28 Seasonal Collection Amin on an alleged violation of the reservation policy.

4. The core issue for consideration is whether the order passed by learned single Judge calling for counter and rejoinder-affidavits without passing any interim order on the application of stay either granting or refusing stay tentamounts to a judgment within the meaning of Chapter VIII Rule 5 of the Rules of Court making it amenable to special appeal under Chapter VIII Rule 5 of the Rules of Court.

Chapter VIII Rule 5 of the Rules of Court reads as under :

“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 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. A perusal of the aforesaid provision goes to show that appeal has been provided from a judgment or order of one judge of the High Court subject to excepted categories or exclusion where special appeal will not be maintainable. Thus, everything turns: upon the meaning of expression “judgment” used in Chapter VIII Rule 5 of the Rules of Court.

6. Th