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2025 DIGILAW 2546 (KER)

State Of Kerala, Represented By The Principal Secretary, Department Of Health And Family Welfare v. Agnimithra Thumbayil

2025-09-23

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Anil K. Narendran, J. The appellant is the 1 st respondent in W.P.(C)No.8031 of 2025, which is one filed by respondents 1 to 10 herein- petitioners, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 12 th respondent herein-Kannur Medical College (3 rd respondent in the writ petition), to grant stipend to them for the entire period of Compulsory Rotating Medical Internship (CRMI) undergone by them in Kannur Medical College; a writ of mandamus commanding the 1 st respondent State to grant stipend to them for the entire period of CRMI undergone by them in Kannur Medical College, granting permission to the State to realise the same from the College. 2. In the writ petition, the learned Single Judge granted an interim order on 03.04.2025, by directing the 1 st respondent State (appellant herein) to pay stipend to the petitioners, as ordered by another learned Single Judge in the order dated 08.12.2023 in I.A.No.2 of 2023 in W.P.(C)No.24320 of 2023. 3. Challenging the interim order dated 03.04.2025 of the learned Single Judge in W.P.(C)No.8031 of 2025, the 1 st respondent State is before this Court with this writ appeal, invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958. This writ appeal was filed along with C.M.Appl.No.1 of 2025 to condone the delay of 95 days in filing the appeal, which was condoned by the order dated 19.08.2025. 4. On 25.08.2025, when this writ appeal came up for admission, it was admitted on file. Respondents 1 to 10 entered appearance through counsel. The learned Standing Counsel for Kerala University of Health Sciences took notice for the 11 th respondent. The 12 th respondent College entered appearance through counsel and the learned Standing Counsel for National Medical Commission entered appearance for the 13 th respondent. By the order dated 25.08.2025, this Court granted an interim stay of the operation of the order dated 03.04.2025 of the learned Single Judge in W.P.(C)No.8031 of 2025, for a period of one month. 5. The 12 th respondent College entered appearance through counsel and the learned Standing Counsel for National Medical Commission entered appearance for the 13 th respondent. By the order dated 25.08.2025, this Court granted an interim stay of the operation of the order dated 03.04.2025 of the learned Single Judge in W.P.(C)No.8031 of 2025, for a period of one month. 5. Heard the learned Senior Government Pleader for the appellant-1 st respondent, the learned counsel for respondents 1 to 10-petitioners, Sri.P. Sreekumar, the learned Senior Counsel for the 11 th respondent Kerala University of Health Sciences, Sri.Abdul Raoof Pallipath, the learned counsel for the 12 th respondent College and Sri.K.S. Prenjith Kumar, the learned Standing Counsel for the 13 th respondent National Medical Commission. 6. The learned Senior Government Pleader and also the learned counsel for respondents 1 to 10-petitioners addressed arguments touching the merits of the issue now pending consideration before the learned Single Judge in W.P.(C)No.8031 of 2025. The learned Senior Government Pleader has also pointed out condition (e) of the format of essentiality certificate issued by the State Government to an applicant for establishment of a Medical College within the State of Kerala. We do not propose to consider those contentions in this writ appeal, since those contentions require consideration by the learned Single Judge at the time of disposal of the writ petition. 7. On the question of maintainability of a writ appeal under Section 5(i) of the Kerala High Court Act, 1958, against an interim order passed by a learned Single Judge during the pendency of the writ petition, the Larger Bench in K.S. Das v. State of Kerala [ 1992 (2) KLT 358 ] held that the word ‘order’ in Section 5(i) of the Act includes, apart from other orders, orders passed by the High Court in miscellaneous petitions filed in the writ petitions provided the orders are to be in force pending the writ petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause substantial prejudice to the parties. The nature of the ‘order’ appealable belongs to the category of ‘intermediate orders’ referred to by the Apex Court in Madhu Limaye v. State of Maharashtra [ (1977) 4 SCC 551 ] . The nature of the ‘order’ appealable belongs to the category of ‘intermediate orders’ referred to by the Apex Court in Madhu Limaye v. State of Maharashtra [ (1977) 4 SCC 551 ] . The word ‘order’ is not confined to ‘final order’ which disposes of the writ petition. The ‘orders’ should not however, be ad-interim orders in force pending the miscellaneous petition or orders merely of a procedural nature. 8. In Thomas P.T. and another v. Bijo Thomas and others [ 2021 (6) KLT 196 ] , a Division Bench of this Court noticed that the view that was upheld by the Larger Bench in K.S. Das [ 1992 (2) KLT 358 ] was that even though an appeal could be filed against an interlocutory order passed in a writ petition, in order to be qualified for challenge in an appeal, the order shall be either substantially affecting or touching upon the substantial rights or liabilities of the parties or which are matters of moment and cause substantial prejudice to the parties. According to the Larger Bench, the nature of the order appealable belongs to the category of intermediate orders referred to by the Apex Court in Madhu Limaye [ (1977) 4 SCC 551 ] . It was, however, clarified by the Larger Bench that such orders should not, however, be ad interim orders or orders merely of a procedural nature. 9. In State of Kerala v. Pradeepkumar A.V. [2025 (1) KHC 672] , this Court was dealing with a writ petition seeking a declaration that the senior-most Registrar of the High Court appointed by promotion from the High Court Service is entitled to a higher grade in the scale of pay Rs.129300-166800 (Special Secretary’s scale), with effect from 01.04.2021, as recommended by the Hon’ble the Chief Justice in the letter dated 16.02.2021 and by the 11 th Pay Revision Commission in its report [Part II, February, 2021]; and a writ of mandamus commanding the 2 nd respondent to accept the proposal made by the Hon’ble the Chief Justice as per the letter dated 16.02.2021 and to issue orders sanctioning a higher grade in the scale of pay Rs.129300-166800 with effect from 01.04.2021 to the senior-most Registrar appointed by promotion from the High Court service, on a par with the scale of pay of Special Secretary to the Government. The interim relief sought for in the writ petition was an order directing the 2 nd respondent High Court to issue orders sanctioning a higher grade with effect from 01.04.2021, in the scale of pay Rs.129300-166800, as recommended by the Hon’ble the Chief Justice in the letter dated 16.02.2021 and by the 11 th Pay Revision Commission in its report, to the senior-most Registrar appointed by promotion from the High Court Service, pending disposal of the writ petition. On 12.12.2024, when the writ petition came up for consideration, the learned Single Judge passed the following order; ''Post this matter on 10.01.2025. If the recommendation of the Hon’ble Chief Justice dated 16.02.2021 is not implemented before the next date of posting of this writ petition, the Chief Secretary of the State shall remain present before this Court on that day itself.'' 10. In Pradeepkumar A.V. [ 2025 (1) KHC 672 ] , while setting aside the said interim order of the learned Single Judge, this Court held that the interim relief sought for in the writ petition is nothing but the final relief. Therefore, instead of passing the impugned interim order dated 12.12.2024, the learned Single Judge ought to have considered the rival contentions and decided the question as to whether the writ petitioner is entitled to a writ of mandamus, as sought for in that writ petition. At any rate, by way of an interim order, respondents 1 to 3 in the writ petition cannot be directed to implement before the next posting of the writ petition, the recommendation made by the Hon’ble the Chief Justice in the letter dated 16.02.2021, failing which the Chief Secretary shall remain present before the Court on 10.01.2025 itself. 11. In the instant case, by granting the interim order dated 03.04.2025, the learned Single Judge has virtually allowed W.P.(C)No.8031 of 2025. Such a course is legally impermissible in view of the law laid down by this Court in Pradeepkumar A.V. [ 2025 (1) KHC 672 ] . Such an order passed by the learned Single Judge, which substantially affects or touches upon the substantial rights or liabilities of the parties is an order appealable under Section 5(i) of the Kerala High Court Act, 1958, in view of the law laid down by a Larger Bench of this Court in K.S. Das [1992 (2) KLT 358] 12. Such an order passed by the learned Single Judge, which substantially affects or touches upon the substantial rights or liabilities of the parties is an order appealable under Section 5(i) of the Kerala High Court Act, 1958, in view of the law laid down by a Larger Bench of this Court in K.S. Das [1992 (2) KLT 358] 12. In such circumstances, the interim order dated 03.04.2025 of the learned Single Judge in W.P.(C)No.8031 of 2025 is liable to be set aside on the aforesaid grounds. In the result, this writ appeal is disposed of by setting aside the interim order dated 03.04.2025 of the learned Single Judge in W.P.(C)No.8031 of 2025 on the aforesaid grounds. It would be open to respondents 1 to 10-petitioners to seek for an expeditious consideration of the writ petition by the learned Single Judge. The legal and factual contentions raised by both sides are left open to be raised before the learned Single Judge at appropriate stage.