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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.