Intra-court appeals against judgments in writ proceedings under Article 226 are maintainable when the orders are made under a Central Act, as established by the court's application of the doctrine of pith and substance.

JUDGMENT :

Manoj Kumar Gupta, J.

1. The present reference to Larger Bench is on the following questions: -

"(a) Whether an intra court appeal under Chapter VIII Rule 5 of the High Court Rules against a judgment of single Judge in a writ proceeding under Article 226 of the Constitution of India preferred against an order passed by an authority exercising appellate or revisional power under Uttar Pradesh State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981 would be maintainable?

(b) Whether the Division Bench decision in the case of U.P.S.R.T.C. Thru R.M. Vs. Abhay Raj Singh and others (supra) or the earlier two Division Bench decisions, namely, Jageshwar Prasad Tiwari Vs. U.P.S.R.T.C. and others (supra) and Madan Pal Singh Vs. State of Uttar Pradesh and others (supra), lays down the correct law ?"

The backdrop in which the reference has been made:

2. The appellant was a Conductor in the Uttar Pradesh State Road Transport Corporation (for short hereinafter referred to as “UPSRTC”). It has been constituted by a notification dated 31.5.1972 by the State Government, issued under Section 3 of the Road Transport Corporations Act, 1950 (for short hereinafter referred to as “the Act”). The appellant was removed from service by order dated 5.10.2019, passed by Assistant Regional Manager, UPSRTC (the sixth respondent herein). The appellant being aggrieved thereby, filed a departmental appeal, but it came to be dismissed by order dated 16.3.2020, passed by Regional Manager, UPSRTC (the fifth respondent herein). The matter was taken up in revision, which too came to be dismissed by order dated 12.11.2020, passed by Chairman, UPSRTC (the fourth respondent herein). The appellant challenged all the aforesaid orders by filing Writ – A No. 254 of 2021 before this Court. It has been dismissed by a learned Single Judge by order dated 13.1.2021 on the ground of availability of alternative remedy.

3. The appellant has thereafter preferred the instant appeal challenging the judgment of the learned Single Judge.

4. When the appeal came up for consideration before a Division Bench of this Court, it was contended on behalf of the respondents that special appeal would not be maintainable in view of the exceptions contained in Chapter VIII Rule 5 of the Rules of Court. Reliance was placed on a Division Bench judgment of this Court in UPSRTC through RM vs. Abhai Raj Singh and others, Special Appeal (Defective) No. 862 of 2014, decided on 30.10.2014.. On the other hand, it was contended on behalf of the appellant that special appeal would be maintainable as the power has been exercised under the regulations framed under a Central Act in respect of matters enumerated in the Union List. It would therefore not fall within the ambit of the exclusions stipulated under Chapter VIII Rule 5 of the Rules of Court. In support of the contention, reliance was placed on Division Bench judgments of this Court in Jageshwar Prasad Tiwari vs. UPSRTC and Others, 2018 (4) ADJ 263 (DB)and Madan Pal Singh vs. State of Uttar Pradesh and Others, Special Appeal No. 1488 of 2006, decided on 22.5.2014.

5. The Division Bench which heard the appeal noticed that the judgment in Abhai Raj Singh and 2 others1 proceeded on a wrong assumption that the legislation under which the orders were passed by the officers/authority, was a State Legislation, although it is a Central Legislation, but as the said judgment was passed by Bench of co-equal strength therefore, having regard to judicial propriety, the matter was referred to the Larger Bench after formulating the aforesaid questions.

6. Before we proceed to record the rival contentions, it would be advantageous to have an overview of the existing legal provisions and the legislative history of special appeals or Letters Patent Appeals as was the nomenclature assigned to such appeals at the inception of such jurisdiction.

History of Statutory Regime of Letters Patent Appeals:-

7. On 17th March, 1866 High Court of