Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 135 (UTT)

Salman Badar v. State of Uttarakhand

2022-06-10

R.C.KHULBE, S.K.MISHRA

body2022
JUDGMENT : Shri Sanjaya Kumar Mishra, J. By filing this Special Appeal, the students of the Himalayan Institute of Medical Sciences, Swami Ram Nagar, Jolly Grant, Dehradun, have assailed the judgment passed by the learned Single Judge in a bunch of writ petitions on dated 26.04.2022, holding that there is no reason to interfere with the order passed by the Appellate Authority, which is impugned before him, and therefore, the consequential orders issued by the State Government and the notice issued by the Registrar of respondent No. 4, i.e., the Medical College, in terms of decision of the Appellate Authority also cannot be interfered with. Such judgment was passed in Writ Petition (M/S) No. 2566 of 2018, Vartika Chauhan and others Vs State of Uttarakhand and others, as a lead case, but eight other cases were disposed of along with this writ petition. 2) At the time of fresh admission, the learned counsel appearing for the Medical College and the University raised an objection regarding the maintainability of the intra-court appeal in view of the provision of Rule 5 of Chapter VIII of the Rules of Court 1952 (as applicable to Uttarakhand High Court). 3) At the outset, we may briefly state the facts of the case. The Fee Committee passed an interim order. Said interim order was challenged by the University before this Court, but the writ petition was withdrawn. Later on, the Fee Committee fixed the fee, which action was challenged before the Appellate Authority. The Appellate Authority, vide, judgment dated 05.07.2018, upheld the order passed by the Fee Committee. Said order dated 05.07.2018, was challenged before this Court in various writ petitions, including the present appellants, who are the students of the College concerned. 4) The learned Single Judge after taking into consideration all the relevant facts and question of law raised before him came to the conclusion that there is no reason to interfere with the order passed by the Appellate Authority. Such order has been challenged in this Special Appeal. 5) Rule 5 of Chapter VIII of the Rules of Court, 1952 (as applicable to the Uttarakhand High Court) reads as under:- 5. Special appeal. Such order has been challenged in this Special Appeal. 5) Rule 5 of Chapter VIII of the Rules of Court, 1952 (as applicable to the Uttarakhand High 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 the 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 Uttarakhand 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. 6) So, in order to bring into play the prohibition of Rule 5 of Chapter VIII of the Rules of the Court, 1952, for entertaining any appeal against an order passed by a learned Single Judge in exercise of jurisdiction conferred under Article 226 of the Constitution, certain criteria has to be considered. 7) As far as this case is concerned, appeal shall not lie, if in respect of any judgment or order passed by this Court under Article 226 or Article 227 of the Constitution against an order, judgment or award passed by an authority made or purported to be made in the exercise or purported exercise of revisional jurisdiction under any Uttarakhand Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution. It is not disputed at this stage that professional education appears at entry No. 25 of the Concurrent List of the Seventh Schedule to the Constitution. It is not disputed at this stage that professional education appears at entry No. 25 of the Concurrent List of the Seventh Schedule to the Constitution. Secondly, the Uttarakhand Unaided Private Professional Educational Institutions (Regulation of Admission and Fixation of Fees) Act, 2006, has been legislated by the Uttarakhand Legislative Assembly in purported exercise of Article 246 of the Constitution, and entry No. 25 of the Concurrent List of the Seventh Schedule to the Constitution. 8) Thus, it is clear that all the necessary criteria that are required to bar an appeal, are available in this case. It is well settled principle of law that appeal is a creation of Statute, and unless the Statute provides, an appeal cannot be held to be maintainable. 9) Similar issue arose before this Court earlier also in the case of Intezar Hussain and another Vs State of Uttarakhand and others, 2015 (2) U.D. 261. The Division Bench of this Court, headed by the then Chief Justice, examined whether under Rule 5 of Chapter VIII of the Allahabad High Court Rules, 1952 (as applicable to the State of Uttarakhand) an intra-court appeal shall lie to the Division Bench against a judgment passed by the learned Single Judge in a writ petition challenging the final order passed by the Prescribed Authority under the Uttar Pradesh Public Premises Act, and the Division Bench came to the conclusion that such appeal is not maintainable in view of the provision of Rule 5 of Chapter VIII of the Rules of Court, 1952. 10) Similarly, in the case of M/s Hotel Urvashi Vs Uttarakhad Power Corporation Ltd. and another, 2020 (2) U.D. 33, a Division Bench of this Court, headed by the then Chief Justice, came to the conclusion that an intra-court appeal is not maintainable against the order passed by the learned Single Judge, against the final order of the Consumer Grievances Redressal Forum holding that such appeal is not maintainable. 11) In this case also, it is not disputed that the Appellate Authority exercising jurisdiction under the Uttarakhand Unaided Private Professional Educational Institutions (Regulation of Admission and Fixation of Fees) Act, 2006, is a quasi-judicial body and any final order passed thereon, if challenged before the learned Single Judge and a final order is passed, then the order is not appealable before the Division Bench. 12) In that view of the matter, we hold that the present Special Appeal is not maintainable. The same is hereby dismissed. There shall be no order as to costs. Urgent certified copy of this order be supplied to the learned counsel for the parties, as per Rules.