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Modification of Interim Order Not a '' Under Clause 12: J&K&L High Court
The has clarified a key procedural point: an order that merely modifies an interim direction in a pending writ petition, while keeping all substantive issues alive, does not qualify as a “” under . Consequently, such an order is not amenable to an .
A Division Bench comprising Justice Sindhu Sharma and Justice Shahzad Azeem dismissed a Appeal (LPA) filed by , which had challenged a Single Judge’s order permitting the to proceed with a sensitive defence tender along the Line of Control. The Court held that the impugned order was a classic , not a , and therefore the appeal was not maintainable.
A Tender on the LOC and a Technical Rejection
The case arose from nine parallel tenders floated by the for the “Realignment of IAIOS/AOIS” in the Naushera-Jhangar sector—an area of strategic importance following Operation Sindoor. The appellant, a proprietorship firm experienced in supplying structural stores to the , was declared “rejected-technical” on for alleged non-compliance with sample submission and certification requirements.
Challenging this rejection, the appellant approached the writ court seeking, among other reliefs, re-evaluation and a restraint on finalising the tender. On , the writ court directed deferment of the financial bid opening. However, after the respondents disclosed that the financial bids had already been opened and rate analysis was underway, the Single Judge modified the interim order on . The modification allowed the respondents to finalise the bidding process, but expressly made finalisation subject to the outcome of the writ petition and prohibited the successful bidder from claiming any .
The Core Dispute: Is Every Modification a “”?
The appellant argued that the modification order effectively took away its protection and vitally affected its right to compete. It contended that the Single Judge had failed to return any finding on the alleged arbitrariness in the technical evaluation, including the issuance of a last-minute , pooled samples by competitors, and the eligibility of certain bidders. On this basis, the appellant claimed the order was a “” under Clause 12 and therefore appealable.
The respondents, represented by , countered that the financial bids were already opened, the sample was submitted late and was non-compliant, and that stalling the tender would jeopardise operationally urgent defence works on the LOC. They further pointed out that the appellant itself had withdrawn from a prior tender as L-1 in 2024-25, causing administrative difficulty.
Balancing Equities, Not Deciding Rights
The Division Bench emphasised that the writ petition remained pending and that the Single Judge had not finally decided any of the appellant’s allegations. The Bench noted that the impugned order did not uphold or quash the technical rejection or the ; it merely refused to keep the tender frozen while the petition was heard.
“What is discernible, therefore, is that the writ Court order under challenge is a classic example of and is not a disposal of the application for in the sense of a ,” observed Justice Shahzad Azeem, who authored the .
The Court further explained that an interim order remains capable of being modified by later orders in the same proceeding. If every such modification were treated as a “,” the Division Bench would become a first appellate court for every interlocutory direction—a result not intended by Clause 12.
The Test for a “” Under Clause 12
Referring to the settled law in and , the Bench reiterated that a “” under Clause 12 must determine some right or issue between the parties with an element of finality. Routine interlocutory orders that do not determine such rights fall outside the expression.
The Court found that the Single Judge had expressly left all contentious issues—including allegations, the validity of the , and the technical evaluation—open for adjudication in the main writ petition. The twin conditions imposed—finalisation subject to the writ and a bar on the successful bidder claiming —preserved the appellant’s remedies.
“An order that keeps the petition alive, keeps every substantial issue open, and only refuses to halt an ongoing tender, does not determine vital rights with finality,” the Court held.
No Interference on Merits
Even on the merits, the Division Bench found no in the Single Judge’s approach. The writ court had correctly applied the principles governing interlocutory restraint in tender matters, giving due weight to the operational character of the procurement. The Court reiterated that of tenders is confined to the decision-making process, not a re-trial of the ’s assessment. Where technical issues are involved, judicial restraint is greater.
The Bench also underscored that private commercial interests must yield to , especially when the tender concerns defence works on the LOC. “Defence procurement of operational works on the LOC is not to be halted on a vendor’s claim that it would have been L-1, if admitted to the financial bid,” the noted.
Dismissal Without Prejudice
Concluding that the appeal was not maintainable, the Division Bench dismissed the LPA. It made clear that it had expressed no opinion on the merits of the writ petition, and all contentions of the parties remained open. The effect is that the appellant’s challenge to its technical rejection will continue to be heard by the Single Judge, without being prejudiced by the appellate order.
The serves as a clear reminder that not every interim modification is a “” capable of being appealed, and that the overriding consideration in cases involving is the larger .
