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CASE NO.: Appeal (civil)  8290 of 2002

PETITIONER: Dr. Manju Varma  

RESPONDENT: State of U.P. & Ors.

DATE OF JUDGMENT: 17/11/2004

BENCH: Ruma Pal & P.Venkatarama Reddi

JUDGMENT: J U D G M E N T

RUMA PAL, J.

       The subject matter of challenge in this appeal is an  order passed by the Chief Justice of the Allahabad High Court  transferring writ petition No.1678(S/B) of 1998 (Dr. Manju  Verma Vs. State of U.P. and others) from  the Lucknow Bench  of the High Court to Allahabad for hearing.         The respondent has raised a preliminary objection that  the appeal was not maintainable under Article 136 of the  Constitution.  According to the respondent, the impugned  order was not an "order" passed by a "Court" or a "Tribunal"  within the meaning of Article 136, but was an order passed  under paragraph 14 of the United Provinces High Courts  (Amalgamation) Order 1948 on the administrative side.  It is  also submitted that the appropriate remedy of the appellant  was under Article 226 of the Constitution.  The Respondent  has relied upon the decisions of this Court in Konkan Railway  Corporation Ltd and Anr. Vs. Rani Construction Pvt. Ltd.  2002 (2) SCC 388, Rajasthan High Court Advocate’s  Association Vs. Union of India 2001(2) SCC 294 and State  of Rajasthan Vs. Prakash Chand 1998 (1) SCC 1, to  contend that the nature of the power conferred and exercised  by the Chief Justice under paragraph 14 of the 1948 order  was purely administrative.         The appellant has submitted that since the territorial  jurisdictions of the High Court Benches at Lucknow and  Allahabad are rigidly divided, the power exercised by the Chief  Justice under paragraph 14 of the 1948 Order was similar to  the powers conferred under Section 24 of the Code of Civil  Procedure and Article 139-A of the Constitution. It is submitted  that the transfer of the case from one territorial jurisdiction to  another territorial jurisdiction has always been considered to  be judicial in nature and the functionary exercising such  power, a Court or a Tribunal. It is submitted that a litigant as  the dominus litis  cannot be deprived of the right to choose a  forum without being heard.  According to the appellant, there  was a lis between the appellant and the respondent as to  whether the writ petition should be transferred or not.  The  Chief Justice in deciding such a lis exercised  quasi judicial  power and would be a Tribunal for the limited purposes for  deciding the transfer of a case.  It is contended that the power  which was being construed in the Konkan Railway case  (supra) was the power of the Chief Justice under Section  11(6) of the Arbitration and Conciliation Act 1996 which only  involved the nomination of an Arbitrator to decide a case.   Here there was already a case pending before a competent

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Court. Another distinction with Section 11(6) of the Arbitration  Act is that the appointment could be questioned before the  Arbitrator, whereas under Clause 14 of the 1948 Order, the  correctness of the Chief Justice’s order could not be argued  before the Court to which the case was directed to be  transferred.   Article 136 of the Constitution confers broad powers on  this Court to grant special leave to appeal from any order  whether an appeal lies from such an order under law or not.  "The article itself is worded in the widest terms possible.  It  vests in the Supreme Court a plenary jurisdiction in the matter  of  entertaining and hearing appeals, by granting of special  leave against any kind of judgment or order made by a Court  or Tribunal in any cause or matter and the powers could be  exercised in spite of the specific provisions for appeal  contained in the Constitution or other laws.  The Constitution  for the best of reasons did not choose to fetter or circumscribe  the powers exercisable under this article in any way".   According to The Engineering Mazdoor Sabha  & Anr. Vs.  The Hind Cycles Ltd.    "It is clear that Art.136(1) confers very wide  powers on this Court and  as such, its  provisions have to be liberally construed.  The  constitution-makers thought it necessary to  clothe this Court with very wide powers to deal  with all orders and adjudications made by  Courts and Tribunals in the territory of India in  order to ensure fair administration of justice in  this country.  It is significant that whereas Arts.  133(1) and 134 (1) provide for appeals to this  Court against judgments, decrees and final  orders passed by the High Courts, no such  limitation is prescribed by Art. 136(1).  All  Courts and all Tribunals in the territory of India  except those in Cl.(2) are subject to the  appellate jurisdiction of this Court under  Art.136(1).  It is also clear that whereas the  appellate jurisdiction of this Court under  Arts.133(1) and 134(1) can be invoked only  against final orders, no such limitation is  imposed by Art. 136(1).  In other words, the  appellate jurisdiction of this Court under this  latter provision can be exercised even against  an interlocutory order or decision.  Causes or  matters covered by Art.136(1) are all causes  and matters that are brought for adjudication  before Courts or Tribunals.  The sweep of this  provision is thus very wide".

Thus two conditions must be satisfied for invoking Article  136 (1) :- (1)     The proposed appeal must  be against a  judicial or quasi judicial and not a purely  executive or administrative order and; (2)     The determination or order must have been  made or passed by any Court or Tribunal in  the territory of India. The decision in Engineering Mazdoor Sabha notices  that the designation of an act as quasi judicial or as purely  executive depends on the facts and circumstances of each  case.  But generally speaking if there is a contest between two  contending parties and a statutory authority is required to  adjudicate upon the competing contentions then the act is a  quasi judicial one [See Indian National Congress (I) Vs.  Institute of Social Welfare & Ors (2002) 5 SCC 685].

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In  Jaswant Sugar Mills Ltd. v. Lakshmi Chand : 1963  Supp. 1 SCR 242 : AIR 1963 SC 677  three characteristics of  a judicial order have been indicated.  "1)     It is in substance a determination upon        investigation of a question by the application  of objective standards to facts found in the  light of pre-existing legal rules;

2) it declares rights or imposes upon parties  obligations affecting their civil rights; and

3) that the investigation is subject to certain  procedural attributes contemplating an  opportunity of presenting its case to a party,  ascertainment of facts by means of evidence if  a dispute be on questions of fact, and if the  dispute be on question of law on the  presentation of legal argument, and a decision  resulting in the disposal of the matter on  findings based upon those questions of law  and fact". (p.682)   We can now consider whether the impugned order can  be described as quasi-judicial. Prior to 1948, the High Court at Allahabad and the Chief  Court in Oudh exercised jurisdiction over the different  territories. Historically, the territories within the jurisdiction of  the Oudh Chief Court were the 12 districts of Lucknow,  Fatehpur, Sultanpur, Rai Bareilly, Pratapgarh, Bara Banki,  Gonda, Bahraich, Solapur, Kheri, Hardoi and Unnao. By the  United Provinces High Courts (Amalgamation) 1948 Order  from 26th July, 1948, the High Court in Allahabad and the  Chief Court in Oudh were amalgamated to constitute one High  Court by the name of the High Court of Judicature at  Allahabad.  Under paragraph 7 of the Order the new High  Court was vested with all such original appellate and other  jurisdiction, as under the law in force immediately before     26th July, 1948 was exercisable in respect of any part of that  Province by either of the "existing High Courts". The phrase  "existing High Courts" has been defined in paragraph 2(1) of  the Amalgamation Order to mean the High Courts referred to  in Section 219 of the Government of India Act, 1935 as the  High Court in Allahabad and the Chief Court in Oudh. Clause  14 of the 1948 Order which is required to be interpreted by us  reads:- "The new High Court, and the judges and  division courts thereof, shall sit at Allahabad  or at such other places in the United  Provinces as the Chief Justice may, with the  approval of the Governor of the United  Provinces appoint:

Provided that unless the Governor of the  United Provinces with the concurrence of the  Chief Justice, otherwise directs, such judges  of the new High Court not less than two in  number, as the Chief Justice, may, from time  to time nominate, shall sit at Lucknow in order  to exercise in respect of cases arising in such  areas in Oudh, as the Chief Justice may  direct, the jurisdiction and power for the time  being vested in the new High Court:

Provided further that the Chief Justice may in  his discretion order that any case or class of  cases arising in the said areas shall be heard

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at Allahabad."          This paragraph has already been the subject of  interpretation in Sri Nasiruddin Vs. State Transport  Appellate Tribunal, 1975 (2) SCC 671.  This Court held that  the power of the Chief Justice to direct what areas in Oudh  are within the exclusive jurisdiction  of Judges of the Lucknow  Bench meant that areas once determined would continue to   hold good.   It was further held that under the first proviso to  paragraph 14 of the 1948 Order, Lucknow was the seat in  respect of causes of action arising in the Oudh areas.  It was  held that the second part of the first proviso to paragraph 14  showed that once a direction was given including certain  areas in Oudh  there was no power or discretion which could  be again exercised to change the areas from time to time.  It  was held that if a cause of action arose wholly or in part at a  place within specified Oudh areas, the Lucknow Bench would  have the jurisdiction and if the cause of action arose wholly  within the specified Oudh areas then the Lucknow Bench  would have exclusive jurisdiction in such a matter. This Court  went on to say:- "If the cause of action arises in part within the  specified areas in Oudh it would be open to  the litigant who is the dominus litis to have his  forum conveniens.  The litigant has the right to  go to a court where part of his cause of action  arises.  In such cases, it is incorrect  to say  that the litigant chooses any particular court.   The choice is by reason of the jurisdiction of  the court being attracted by part of cause  of  action arising within the jurisdiction of the  court.  Similarly, if the cause of action can be  said to have arisen in part within specified  areas in Oudh and part outside the specified  Oudh areas, the litigant will have the choice to  institute proceedings either at Allahabad or  Lucknow.  The court will find out in each case  whether the jurisdiction of the court is rightly  attracted by the alleged cause of action."

       With this interpretation of clause 14, it is clear that the  Benches of Lucknow and Allahabad although part of one High  Court, exercise distinct and exclusive jurisdiction over  demarcated territories.  The decision in Nasirudin  also  makes it clear that it was open to a litigant to invoke the  jurisdiction of any one of the Benches, if part of the cause  of  action had arisen within the territorial jurisdiction of both.         It would be instructive in this context to compare the  power of transfer of litigation from one jurisdiction to another  under Section 24 of the  Code of Civil  Procedure.  Section 24  allows the High Courts or the district Courts either on the  application of any of the parties after notice and hearing or of  its own motion without such notice to inter alia transfer any  suit/appeal or other proceedings, pending in any court  subordinate to it for trial or disposal to any other court  subordinate to it and competent to try and dispose of the  same. Similar power has been granted under the Letters  Patent  to Chartered High Courts to withdraw proceedings  from any Court within its jurisdiction to itself.  Thus clause 13  of the Letters Patent 1865 in relation to the Calcutta High  Court provides:- "And we do further ordain, that the said High  Court of Judicature at Fort William in Bengal  shall have power to remove, and to try and  determine, as a Court of extraordinary original

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Jurisdiction, any suit being falling within the  jurisdiction of any Court, whether within or  without the Bengal Division of the Presidency  of Fort William, subject to its superintendence,  when the said High Court shall think proper to  do so, either on the agreement of the parties  to that effect, or for purposes of justice, the  reasons for so doing being recorded on the  proceedings of the said High Court."

       Again, this Court has been empowered under Article  139A of the Constitution to transfer proceedings from one  High Court to another, either on its own motion or on an  application made either by the Attorney General of India or by  a party to any such case.           It may be that the orders passed under the first two  provisions are not appealable as a matter of right, but  nonetheless they remain judicial orders and susceptible of  correction under Art. 136. The mere fact that the power  has  been vested in the Chief Justice  under paragraph 14 of the  Amalgamation Order and not  in the Court would not detract  from the nature of the power exercised.  The power of transfer  from one territorial jurisdiction is distinct from the power of the  Chief Justice to frame a roster to determine the distribution of  judicial work in the High Court.  In the latter case it is an intra  jurisdictional as opposed to an inter jurisdictional act. [See:  State of Rajasthan v. Prakash Chand (Supra); Rajasthan  High Court Advocates Association v . Union of India  (supra)]. It is also distinct from the power of the Chief Justice  or his designate to appoint an arbitrator under S.11 (6) of the  Arbitration & Conciliation Act, 1996.  Under that section "\005.  the only function of the Chief Justice or his designate under  Section 11 is to fill the gap left by a party to the arbitration  agreement or by the two arbitrators appointed by the parties  and nominate an arbitrator".   While exercising this discretion  there is no need to serve notice on any party and a rule  providing for notice upon the party to the arbitration  agreement to show cause why the nomination of an arbitrator  as requested should not be made, is bad.  The only purpose  for which a notice may be given would be to inform a party of  such appointment or for assistance of the Chief Justice or his  designate to nominate an arbitrator .  No lis exists nor is  decided. There was nothing executive in the procedure followed  in this case. The respondent had applied to the Chief Justice  under paragraph 14 for a transfer of the appellant’s writ  petition from Lucknow to Allahabad.  The Chief Justice heard  the parties and by a detailed and reasoned order directed  such transfer.  There can in the circumstances be no doubt  that the order of the Chief Justice was, if not judicial, at least  quasi judicial.   The next question is whether the Chief Justice could be  said to have acted as a "Court" or as a "Tribunal". In Durga Shankar Mehta Vs. Thakur Raghuraj Singh  & Ors. 1954 SCR 272  this Court declared:- "\005 the expression "Tribunal" as used in article  136 does not mean the same thing as "Court"  but includes, within its ambit, all adjudicating  bodies, provided they  are constituted by the  State and are invested with judicial as  distinguished from purely administrative or  executive functions.  The only Courts or  Tribunals, which are expressly exempted from  the purview of article 136, are those which are  established by or under any law relating to the

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Armed Forces as laid down in clause (2) of  the article.

In Indian National Congress (I) Vs. Institute of Social  Welfare and Ors. (2002) 5 SCC 685 this Court posits:- "Where there is a lis or two contesting parties  making rival claims and the statutory authority  under the statutory provision is required to  decide such a dispute, in the absence of any  other attributes of a quasi-judicial authority,  such a statutory authority is quasi-judicial  authority."

In ordering the transfer of the case under the 1948  Amalgamation Order, the Chief Justice was determining the  plea of the respondent and the objection of the appellant to  the transfer of the appellant’s writ petition.  He could not allow  the plea without hearing the affected party and without  determining on objective criteria and upon investigation  whether the case was (a) transferable and (b) should be  transferred.  His decision would affect the right of the  appellant to choose her ’forum conveniens’.  He was therefore  acting as an adjudicating body empowered by the Constitution  to discharge judicial functions. We would accordingly hold that  the Chief Justice while exercising jurisdiction under paragraph  14 of the 1948 Order,  acts as a judicial authority with all the  attributes of a Court and his order is therefore amenable to  correction under Article 136.  The preliminary objection of the  respondent is therefore rejected.          Coming to the merits -  the appellant’s writ petition had  been filed on 12th November 1998 (W.P. No. 1678 of 1998) and  related to the seniority list of the Readers in Obstetrics and  Gynecology in the State Medical Colleges.  The appellant  sought for promotion from the date her juniors, Dr. Sandhya  Aggarwal and Dr. Gauri Ganguli, were given promotion. Dr.  Gauri Ganguli was added as the respondent No.6 to the  appellant’s writ petition in 1999.  Hearing of the writ petition was  concluded and judgment was reserved by a Bench of two  Judges in December 1999.  Subsequently, the matter was  released because of the personal embarrassment faced by one  of the Judges who had heard the matter. It was again heard by  another Bench inconclusively because one of the Judges was  transferred.  During this period, pleadings were complete. The  matter  then appeared in the list of two learned Judges on 10th  July 2001.  An application was filed for adjournment by the  respondent No. 6.  The application was rejected by a reasoned  order.  The order records that while the appellant’s petition had  been taken up for hearing several months back and arguments  had commenced, the matter had been adjourned on several  occasions to accommodate the respondent No. 6 and her  counsel. It was noted that the respondent No. 6 had filed a writ  petition on       4th July 2001 in connection with her appointment  to the post of Reader in the Department of Obstetrics and  Gynecology and obtained an interim order without impleading  the present appellant as a party. It was also noted that the  hearing of the appellant’s writ petition had been fixed with the  consent of the parties.  After further discussion, the Court was  of the view that  the application for adjournment was a device to  get the case adjourned so that the respondent No. 6 could get  an appointment order issued in her favour in her writ petition.   Having rejected the respondent’s No. 6 application for  adjournment, the matter was directed to be proceeded with.  It  was then that the respondent No. 6 filed the application for  transfer of the appellant’s writ application from Lucknow to  Allahabad.    When the appellant’s writ application was taken up

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for hearing on 25th July 2001 an order was passed by the  Division Bench  to the following effect:            "Supplementary counter affidavit on behalf of  respondent No. 6 filed today be placed on  record.

      Heard learned counsel for the petitioner  and learned counsel for the opposite parties.

       Arguments concluded.  Judgment is  reserved."      Six months later  on 23rd January 2002 the Chief Justice  of the High Court allowed   the respondent No.6’s application  for transfer. Before considering    the reasons given by the  Chief Justice for allowing the   transfer it is necessary to  delineate  the ambit of his power   under paragraph 14 of the  Order.   The first proviso of paragraph 14   which confers the  power of  transfer  on  the Chief  Justice   allows the Chief  Justice  to  provide that in  respect of such cases, namely,  those which arise in areas in Oudh, shall be  heard at  Allahabad.  The proviso assumes  first,  that the case or class   of cases to be transferred by the Chief Justice    from Lucknow  to Alllahabad are  those which  the Lucknow  Bench   would     otherwise have the  jurisdiction  to   entertain; and second that           the power of  transfer must  be exercised  for the  purpose of  having the matter heard at Allahabad. If the matter                                                            has already been heard, then the Chief Justice would not have  power to transfer the case from Lucknow to Allahabad.   One of the reasons for allowing the transfer was  that  the writ  petition filed before the Lucknow Bench by  respondent No. 6 being Writ Petition No. 1945 of 2000 relating  to the same issue  had been rejected by the High Court on the  ground that the  Lucknow Bench had no jurisdiction to  entertain the petition and that accordingly a writ petition had  been filed by the respondent No.6 at Allahabad. There was,  according to the impugned order, no reason to take a different  stand in the writ petition filed by the appellant when the  consequential effect of both the writ petitions was the same.   The factual assumption underlying this reason is  incorrect.  It is true that the respondent No. 6 had filed a writ  petition in 2000 before the   Lucknow   Bench ( W. P. No.  1945 (S/B)  of 2000).  It is also true   that  an   order   had  been passed by the Lucknow Bench                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      holding that it had no jurisdiction to entertain the writ petition  and that the writ petition should have been filed at Allahabad.   What has been overlooked is that the respondent No. 6 has  challenged this order by way of civil revision and the civil  revision petition is still pending.  Independent of this, a second  writ petition (W.P. No. 23879 of 2001) was filed by respondent  No. 6 in the High Court in Allahabad in 2001. This writ petition  pertains to the issuance of an appointment order to the  respondent No. 6 as a Reader as noted by us earlier.     The legal basis of this reason for transfer of the  appellant’s writ petition is also erroneous.  It needs to be  emphasized that the power under paragraph 14 envisages

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transfer of a case or class of cases where the Lucknow Bench  otherwise has jurisdiction to decide the matter. Whether the  Lucknow Bench had/had no jurisdiction was not only an issue  to be decided judicially in the appellant’s writ petition but also  an issue which would, if answered in the negative, cut at the  root of the Chief Justice’s power under paragraph 14 of the  Order since paragraph 14 confers the power in the Chief  Justice to transfer  cases only in respect of any case or class  of cases otherwise within the jurisdiction of the Lucknow  Bench to Allahabad.    The second reason for transfer was that the appellant  and the respondent No.6, as well the U.P. Public Service  Commission were at Allahabad.  But the State Government  which issued the impugned order and against which the  mandamus was prayed for by the appellant is in Lucknow.  In  the circumstances, the mere fact that the respondent No. 6  and the appellant were both in Allahabad should not have  weighed with the Chief Justice in depriving the appellant of  her right as dominus litis.  The third and final reason which persuaded the Chief  Justice to order the transfer is equally insupportable.  The  reason was that the hearing of the appellant’s petition was not  concluded.  This reason is contrary to the express language of  the order of the Division Bench dated 25th July 2001. Merely  because an application was made by the respondent No. 6 for  recalling the order  before the Lucknow Bench, did not mean  that the order dated 25th July 2001 ceased to operate. We therefore set aside the order of the Learned Chief  Justice directing transfer of the appellant’s writ petition and  leave the matter to the Lucknow Bench which heard the  matter to proceed with it in such manner as it may think fit. The appeal is accordingly allowed without any order as  to costs.