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Judgment
Sanjeev Kumar, J
1) This intra-Court appeal by the appellants under Clause 12 of the Letters Patent is directed against the order dated 15th of January, 2021, 2019,
passed by the learned Single Judge (the Writ Court) in WP(C) No.29/2021. The Writ Court vide order impugned has directed that the selection of
Principal, SKIMS Medical College/Hospital, Bemina, Srinagar, pursuant to Advertisement Notice No.01 of 2021 dated 7th of January, 2021, shall not
be finalized.
2) The impugned order has been assailed by the appellants, primarily, on the ground that the respondents have persuaded the Writ Court to pass the
impugned order by suppression of material facts and that the impugned order, which is though an ad-interim exparte order, has entailed serious
consequences. The present incumbent holding the post is retiring on 31st of January, 2021, and in case the selection process is not taken to the logical
end, a premier Medical College and Hospital of the Union Territory shall be rendered headless. The appellants cannot afford such situation when the
Union Territory is combating COVID-19 pandemic.
3) Mr. Shah Aamir, learned Additional Advocate General, appearing for the appellants submits that the respondent No.1 to 3 (writ petitioners) are not
entitled to maintain the petition, in that, they have not thrown challenge the Recruitment Rules â€" 2012, laying down eligibility qualification for the post
of Principal SKIMS Medical College/Hospital, Bemina, Srinagar, notified vide Government Order No.118-SKIMS of 2012 dated 6th of November,
2012, read with Government Order No.38-SKIMS of 2017 dated 7th of June, 2017. The writ petitioners having participated in the selection process by
submitting their application forms are otherwise estopped by their conduct to continue with their petition. It is thus urged that the challenge of the writ
petitioners to the condition No.iii and iv under the heading “Other Terms and Conditions for the post shall be as under†in the Advertisement
Notice dated 7th of January, 2021, is not maintainable and the writ petition is liable to be dismissed at the outset. The petitioners, however, by
suppression of material facts have succeeded in persuading the Writ Court to pass the impugned order and stall the selection process.
4) Per contra, Mr. R. A. Jan, learned Senior Counsel appearing for the writ petitioners, besides meeting the challenge of the appellants on merits, has
raised a preliminary objection with regard to maintainability of the appeal. He argues that for maintaining an intra-Court appeal under Clause 12 of the
Letters Patent, it is necessary that the impugned order qualifies to be a “judgment†within the meaning of the Clause. The orders of moment
passed during the course of writ petition, which do not determine any rights of the parties, cannot be termed as “judgment†for the purposes of
maintaining appeals under Clause 12 of the Letters Patent.
5) Having heard learned counsel for the parties and perused the record, it is necessary to first set out Clause 12 of the Letters Patent.
“12. And we do further ordain that an appeal shall lie to the said High Court of judicature from the judgment (not being a judgment passed in the
exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to superintendence of
the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the
exercise of the power of superintendence) of one judge of the said High Court or one judge of any Division Court and that notwithstanding anything
hereinbefore provided an appeal shall lie to the said High Court from a judgment of “one Judge of the said High Court or one Judge of†any
Division Court, a consistently with the provisions of the civil procedure code, made in the exercise of appellate jurisdiction in respect of a decree or
order made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction in respect of a decree
or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the judge who passed
the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of the judges of the said High Court or of
such division court shall be to us, our Heirs or Successors and be heard by our Board of Judicial Advisers for report to us.â€
6) From a reading of Clause 12, it is clear that an appeal shall lie to the Division Bench of the High Court from the judgment, not being a judgment
passed in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate court by a Court subject to
superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or
made in the exercise of power of superintendence. To put it succinctly, Clause 12 provides an intra-court appeal from the judgment of a Single Bench
to the Division Bench of the High Court in all matters except those specifically excluded by Clause 12.
7) With a view to determine the maintainability of the appeal on hand, we need to first understand the true meaning and import of the term
“judgment†used in Clause 12 of the Letters Patent.
8) The issue with regard to scope, meaning and purport of the Court of Bombay and Calcutta came up for consideration of the Supreme Court in the
case of Shah Babulal Khimji vs. Jayaben D. Kani and another, (1981) 4 SCC 8. A three Judge Bench, after analyzing the observations of Chief
Justice Sir Arnold White in the case of Tuljaram Row , ILR 35 Mad 1, found certain tests laid down for assessing the import and definition of the
word „judgment‟ as used in Clause 15 of the Letters Patent. Paragraph 91 of the judgment, which enumerates these tests, is reproduced hereunder:
“91. Analysing the observations of the learned Chief Justice it would appear that he has laid down the following tests in order to assess the import
and definition of the word 'judgment' as used in cl. IS of the Letters Patent :-
(1) It is not the form of adjudication which is to be seen but its actual effect on the suit or proceeding;
(2) If, irrespective of the form of the suit or proceeding, the order impugned puts an end to the suit or proceeding it doubtless amounts to a judgment;
(3) Similarly, the effect of the order, if not complied with, is to terminate the proceedings, the said order would amount to a judgment;
(4) Any order in an independent proceeding which is ancillary to the suit (not being a step towards judgment) but is designed to render the judgment
effective can also be termed as judgment within the meaning of the Letters Patent.
So far as this test is concerned, the learned Chief Justice had in mind orders passed by the Trial Judge granting or refusing ad-interim injunction or
appointing or refusing to appoint a receiver.
(5) An order may be a judgment even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in
the suit or proceedings.
(6) An adjudication based on a refusal to exercise discretion the effect of which is to dispose of the suit, so far as that particular adjudication is
concerned, would certainly amount to a judgment within the meaning of the Letters Patent.
9) Apart from the tests laid down by the learned Chief Justice, the three Judge Bench in Shah Babulal Khimji‟s case (supra) also enumerated certain
considerations that as per the Supreme Court must prevail with the Court while appreciating the true manner and scope of the term “judgment†as
used in the Letters Patent. Paragraph 119 and 120 of the judgment elaborate such considerations and, therefore, are also reproduced hereunder:
“119. Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court:
(1) That the Trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass
discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders
passed by the Trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be
treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the Trial Judge.
The courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed
to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.
(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in
controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.
(3) The tests laid down by Sir White, C.J. as also by Sir Couch, C.J. as modified by later decisions of the Calcutta High Court itself which have been
dealt with by us elaborately should be borne in mind.
Thus, these are some of the principles which might guide a Division Bench in deciding whether an order passed by the Trial Judge amounts to a
judgment within the meaning of the Letters Patent. We might, however, at the risk of repetition give illustrations of interlocutory orders which may be
treated as judgments:
(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a
vested right of limitation or any other valuable right accrued to the defendant.
(2) An order rejecting the plaint.
(3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure.
(4) An order rescinding leave of the Trial Judge granted by him under clause 12 of the Letters Patent.
(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar
against competency of the suit against the defendant even though the suit is kept alive.
(6) An order rejecting an application for a judgment on admission under order 12 Rule 6.
(7) An order refusing to add necessary parties in a suit under s. 92 of the Code of Civil Procedure.
(8) An order varying or amending a decree.
(9) An order refusing leave to sue in forma pauperis.
(10) An order granting review.
(11) An order allowing withdrawal of the suit with liberty to file a fresh one.
(12) An order holding that the defendants are not agriculturists within the meaning of the special law.
(13) An order staying or refusing to stay a suit under s. 10 of the Code of Civil Procedure.
(14) An order granting or refusing to stay execution of the decree.
(15) An order deciding payment of court fees against the plaintiff.
10) As is rightly observed by the Supreme Court that what was laid down by it in Paragraph 119 and 120 was only illustrative and not exhaustive as
may cover all possible cases. This was perhaps a first elaborate attempt by the Supreme Court to explain the true scope and import of the word
„judgment‟ used in Clause 15 of the Letters Patent. It is important to take note of the observations made by the Supreme Court in the aforesaid
judgment itself in paragraph 78. The relevant portion of paragraph 78 deserves reproduced hereunder:
“.........That having regard to the nature of the orders contemplated in the various clauses of Order 43 Rule 1, there can be no doubt that these
orders purport to decide valuable rights of the parties in ancillary proceedings even though the suit is kept alive and that these orders do possess the
attributes or character of finality so as to be judgments within the meaning of Clause 15 of the Letters Patent and hence, appealable to a larger
Bench.â€
11) In the case of Midnapore Peoples‟ Coop. Bank Ltd. Vs. Court formulated point No.(ii) for consideration in paragraph 9 in the following manner:
“Where such a decision on merits is rendered by an interlocutory order of a learned Single Judge, whether an intra-court appeal is available under
clause 15 of the Letters Patent?
12) The Supreme Court after surveying the law on the point in paragraph 15 and 16 concluded thus:
Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories:
(i) Orders which finally decide a question or issue in controversy in the main case.
(ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case.
(iii) Orders which finally decide a collateral issue or question which is not the subject matter of the main case.
(iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment.
(v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the
parties.
16.The term 'judgment' occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in section 2(9) CPC and
orders enumerated in Order 43 Rule 1 of CPC, but also other orders which, though may not finally and conclusively determine the rights of parties
with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and
obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, 'judgments' for the purpose of filing appeals
under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not 'judgments' for purpose of filing appeals provided
under the Letters Patent.
13) In the later judgment in the case of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and others, (2018) 11 SCC 722, the
Hon‟ble Supreme placing reliance on the judgment of Shah Babulal Khimji (supra) and also its the earlier judgment in the case of Shanti Kumar R.
Canji v. Home Insurance Co. of New York, (1974) 2 SCC 387, once again considered the scope of the term “judgment†as is used in Clause 15
of the Letters Patent of Bombay High Court. The observations of the Supreme Court in paragraph 8 of the judgment are noteworthy and, therefore,
deserve to be reproduced hereunder:
“First contention is that the order of Single Judge was not a 'judgment' finally affecting the rights of the parties and the non-maintainability of
Letters Patent Appeal. Clause 15 of Letters Patent provides for intra-court appeals against the judgment of Single Judge of the High Court. The right
of the Letters Patent Appeal to the High Court depends upon whether or not the decision of the Single Judge appealed from affects the merits of the
question between the parties and their valuable rights. Whether an order is a 'judgment' or an 'interlocutory order' depends upon whether or not, it has
finally decided the rights of the parties and whether it has the effect of affecting the rights of the parties. For an order to be a 'judgment', it is not
always necessary that it should put an end to the controversy or terminate the suit. An 'interlocutory order' determining the rights of the parties in one
way or other is also a 'judgment'â€
14) From the analysis of the judgments of the Supreme Court referred to above, following conclusions can be drawn:
The term “judgment†occurring in Clause 12 of the Letters Patent will take into its fold the judgments as defined in Section 2(9) of the Code of
Civil Procedure and the orders enumerated in Section 104 read with Order 43 Rule 1 CPC;
Even if it is assumed that Section 104 and Order 43 Rule 1 CPC do not apply to the appeals, the principles governing these provisions would apply
by process of analogy;
It is not the form of adjudication but its effect in the suit or proceedings in which it is made would be a test to determine whether the adjudication
qualifies to be a judgment within the meaning of Clause 12 of the Letters Patent;
If the effect of adjudication is to put an end to the suit or proceedings so far as the court before which suit or proceeding is pending is concerned,
such adjudication would, undoubtedly, be a „judgment‟ within the meaning of term used in Clause 12 of the Letters Patent. However, an
adjudication in a suit or proceeding, which is merely a step towards obtaining final adjudication in the suit or proceeding, is not a judgment within the
meaning of Clause 12 of the Letters Patent.
An order may be a judgment even if it does not affect the merits of the suit or the proceedings or does not determine any rights raised in the suit or
proceedings. Interlocutory order, in order to be a judgment, must contain traits and trappings of finality either when the order decides the questions in
controversy in an ancillary proceeding or in the suit itself or in a part of proceeding.
Every interlocutory order passed in the suit or proceeding cannot be regarded as judgment but only those orders would be judgments which decide
the matters of moment or effect vital and valuable rights of the parties and which cause serious injustice to the party concerned.
15) Apart from aforesaid tests, the Supreme Court by way of illustration has enumerated several interlocutory orders that may be passed in the course
of suit, in paragraph 120 of Shah Babulal Khimji (supra), which we have reproduced hereinabove.
16) Before we apply the legal position with regard to the scope of the term “judgment†as used in Clause 12 of the Letters Patent to the case in
hand, we find it appropriate to extract relevant portion of the order impugned:-
“In the meanwhile, till next date before the Bench, selection pursuant to the impugned advertisement notice shall not be finalized by the
respondents.â€
17) From a bare reading of the impugned order, it clearly transpires that the order is an ad-interim exparte order and subject to objections of the other
side and is to remain in force only till the next date before the Bench. The impugned order has only restrained the appellants from finalizing the
selection, meaning thereby the appellants are free to proceed with the selection process, impugned order notwithstanding.
18) Indisputably, the writ petitioners have called in question the selection process initiated by the appellants to supply the position of Principal of
SKIMS Government Medical College, Bemina, on the ground that two eligibility conditions laid down in the advertisement notification are
unconstitutional and ultra vires the Recruitment Rules governing such appointment in other Government Medical Colleges. The appellants are well
within their rights to oppose the writ petition and also seek vacation/modification of the impugned order. That apart, when we apply the test laid down
by the Supreme Court in various judgments which have been taken note of hereinabove, it is evident that the impugned order does not fit in any of the
tests laid down by the Supreme Court for determining as to whether the impugned order is tantamount to judgment within the meaning of Clause 12 of
the Letters Patent. The impugned order has apparently been passed by the Writ Court only with a view to preserve the lis and does not, in any
manner, determine or affect the rights of the parties. The appellants even cannot contend that the impugned order has visited them with serious
adverse consequences.
19) It was sought to be projected by Mr. Shah Aamir, AAG, that with effect from 31st of January, 2021, when the present incumbent retires on
superannuation, the SKIMS Medical College/Hospital, Bemina, would be rendered headless and, therefore, urgency in the matter has driven the
appellants to the filing of instant appeal. The plea of Mr. Shah Aamir, at the first instance, appeared to us attractive but, on close scrutiny, we find that
the present incumbent, who is retiring on superannuation, has been working in the institution in incharge capacity for the last three years. Pending
conclusion of the selection process, the appellants are well within their rights to go for similar arrangement and avoid the institution from being
rendered headless.
20) As is held by the Supreme Court in the case of Midnapore Peoples‟ Coop. Bank Ltd. (supra), the orders which may cause some inconvenience or
some prejudice to a party but which do not finally determine the rights and obligations of the parties, are not judgments for the purposes of filing letters
patent appeals. The impugned order being an order passed by the Writ Court to preserve the lis without determining, affecting or prejudicing, in any
manner, any of the rights of the parties, is certainly not a judgment within the meaning of Clause 12 of the Letters Patent.
21) In view of the aforesaid analysis and the observations made above, the preliminary objection of Mr. Jan, learned Senior Advocate, succeeds. The
instant appeal under Clause 12 of the Letters Patent against the impugned order is held not maintainable and the same is, accordingly, dismissed.
22) Keeping in view the nature of controversy involved in the writ petition and the urgency pointed out by learned counsel for the appellants, we deem
it appropriate to prepone the date in the writ petition to 9th of February, 2021, with a request to the Writ Court to prioritize the consideration of the
matter.