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2008 Supreme(J&K) 153
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohd. Yaqoob Mir, J.
Bashir Ahmad Gori - Appellant
Versus
Shaheena Akhter & Ors. - Respondent
CSA No. 6/2005
Decided On : 07 May, 2008
Advocate For Appellant: M.A. Qayoom
Advocate For Respondent: N.A. Beigh
The main legal point established is that the omission to frame issues is not fatal if the parties have had ample opportunity to present evidence and contest the matter on real issues, and that the Classification, Control and Appeal rules do not supersede the Subordinate Services Recruitment Rules for Class-IV posts.
Headnote:
CPC - Suit Determination Without Framing Issues - Section 100 - Rule 14 of Jammu and Kashmir Civil Service Classification, Control and Appeals Rules - [Section 100 of CPC, Rule 14 of Jammu and Kashmir Civil Service Classification, Control and Appeals Rules]
Fact of the Case:
The case involved the appointment of an individual as an Orderly against a vacancy, which was contested by another candidate. The trial court decreed the suit in favor of the contesting candidate, declaring the appointment as illegal and directing consideration of other eligible persons for the post.
Finding of the Court:
The court found that the trial court's failure to frame issues did not render the decision bad as the parties had ample opportunity to present evidence and contest the matter on real issues. The court emphasized that the object of framing issues is to ascertain the material propositions of fact or law on which the parties are at variance, and in this case, the omission to frame issues did not affect the decision.
Issues: The issues included whether a suit can be decided without framing necessary issues, whether draft issues were treated as the issues in the case, and whether Rule 14 of Jammu and Kashmir Civil Service Classification, Control and Appeals Rules supersedes the J&K Subordinate Services Recruitment Rules for Class-IV posts.
Ratio Decidendi: The court held that the omission to frame issues is an irregularity but does not affect the decision if the parties have consciously contested the matter on real issues and no prejudice is noticeable. It also emphasized that the Classification, Control and Appeal rules do not supersede the Subordinate Services Recruitment Rules for Class-IV posts.
Final Decision: The court set aside the judgments of the trial court and the 1st appellate court, remanding the case back to the trial court for a fresh judgment issue-wise based on available evidence.
1. Whether a suit can be decided by the court without framing the necessary issues, which arise for determination?
2. Whether the draft issues, placed on the record of the file were treated by the trial court vide its order dated 12.7.2002 as the issues in the case, if so, whether without deciding those issues the court could have decided the suit in favour or against the plaintiff?
3. Whether Rule 14 of Jammu and Kashmir Civil Service Classification, Control and Appeals Rules supersedes the J&K Subordinate Services Recruitment Rules, in so far Class-IV post was concerned.
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.
4. Aggrieved thereof appellant filed 1st appeal, which also came to be dismissed vide detailed Judgment dated 16.6.2005 passed by 1st Additional District Judge Srinagar. Hence Civil 2nd appeal. Heard. Considered.
Formulated question No. 1:
"i) Whether a suit can be decided by the court without framing the necessary issues, which arise for determination? "
5. Admittedly trial court has not framed the issues. Non-framing of issues in all circumstances does not render the decision bad. Omission to frame issues per-se shall not be a ground for up setting the Judgment. The omission must affect disposal of the case on merits only then omission can be termed to be fatal. In the instant case omission to frame the issues is an irregularity, has no bearing on the results, because parties have been given ample opportunity of adducing the evidence and have consciously contested the matter on real issues. There is no question of prejudice. Appellant has all along participated in the proceedings, has adduced the evidence. Appellants counsel too has not pointed out during the trial about the omission. Apart from that there is an informal omission i.e. to say draft iss
