BASHIR AHMAD GORI Vs. SHAHEENA AKHTER

JUDGEMENT

(1.) JUDGMENT and decree dated 22.12.2003 passed by City Judge Srinagar, upheld by 1st appellate court i.e. 1st Additional District Judge vide Judgment and decree dated 16.6.2005 is impugned in the Civil 2nd appeal. In keeping with Section -100 of CPC, the substantial question of law for determination as formulated vide order dated 16.9.2005 are as under:

(2.) FOR proper determination of these formulated questions, it shall be quite advantageous to briefly notice the factual matrix of the lis, Respondent No.1 vide No. POP/ICDS/Esttt -98/195 dated 1.2.1998 came to be engaged as Orderly against the available vacancy for a period of one month. Until formal orders to be received from the Director Social Welfare (respondent No.1). For confirmation and sanction of pay the case has been referred to Director Social Welfare (respondent No.3). Director Social Welfare vide his Communication dated 29.12.1998 addressed to Programme Officer conveyed, approval for the appointment of Bashir Ahmad Guroo (appellant). It was further conveyed that appointment of Shaheena Akhter (respondent No. 1) cannot be considered against the post of Orderly being female candidate, can be considered against the post of 'Aganwari worker under the expansion programme, as and when sanctioned by Government of India. Appellant seem to have been appointed as Orderly against the post of Junior Assistant vide communication No. DSECP/98/286 -87 dated 24.2.1998 and subsequently vide communication DSW/Estt./5030/98 dated 30.3.1998, issued by Director Social Welfare has been allowed to continue till selection is made. Respondent No. 1 aggrieved there of filed the suit for declaration before the court of Munsiff, which was withdrawn and later on filed a fresh suit before the court of City Judge Srinagar.

(3.) THE trial court decreed the suit vide Judgment dated 22.12.2003, whereunder appointment of appellant has been held to be illegal and dehors to the rules. Respondents 2 to 4 (defendants 1 to 3) have been commanded to consider the respondent and other eligible persons for the post, on which appellant was working and were also directed to take the decision in consonance with rules. Further more an observation has been made for initiating action for illegal appointment.