The Court clarified the conditions for maintaining a suit against the Government without notice under Section 80 CPC and interpreted the provisions of the section.

JUDGMENT :

1. In this Civil Second Appeal filed by the appellant, the following three substantial questions of law have been framed vide Order dated 20.11.2017:

(i) Whether a suit instituted against the Government and its functionaries, in which emergency is invoked, can be maintained and continued, when no interim relief is granted in the case?

(ii) Whether in terms of sub-section (3) of Section 80 it was mandatory for the Court to return the plaint to the plaintiff as no interim relief was granted in the case with regard to the appointment of the appellant?

(iii) Whether in judging the appointment of the appellant as FMPHW, a criteria has been introduced which is foreign to the advertisement notice as also the norms fixed by the Government for making engagement of staff in N4 on contractual basis?

2. Before considering the substantial questions of law for determination, it would be appropriate to give brief facts of the case.

3. Chief Medical Officer, Pulwama, in his capacity as Vice Chairman District Health Society, Pulwama, issued advertisement bearing endorsement No. CMO/ PuI/NRHM/Apptt./Cont./4486-93, dated 06.02.2012,inviting applications on prescribed format from eligible candidates of District Pulwama, under National Rural Health Mission (for short "NRHM"), RCH-II, as per the criteria shown in the advertisement notice, amongst others, for the posts of Female Multipurpose Health Worker (for short "FMPHW") for Sub Centre Amlar. The prescribed qualification was Diploma in FMPHW from SMF/any recognized Institute. The terms and conditions prescribed as eligibility for applying to the post included that the candidate should be resident of the locality where the Health Institution is located so as to ensure continuous presence for 24 x 7 days' service. In pursuance of the advertisement notice and the rules prescribed by the Government of India for making selection of candidates against the post of FMPHW, the candidates applying for the post, included the appellant and respondent No. 1.The appellant, vide order dated 19.05.2012, was appointed as FMPHW at Sub-Centre Amlar, Block Tral, and she joined her duties on 21.05.2012 and since then has been continuously performing her duties. The Respondent No. 1/plaintiff filed a suit against the appellant defendant no. 6, before the Trial Court and the Trial Court granted the following relief:

"The plaintiff accordingly prayed for a decree of declaration declaring the appointment of engagement of defendant no.6 as FMPHW NRHM as null and void and decree of declaration declaring the plaintiff entitled to the said post and decree of permanent injunction restraining the defendants form giving any effect to said order and may be restrained from drawing any sort of salary in favour of defendant no. 6. Any other relief which the Court may deem fit may also be granted in favour of the plaintiff and against the defendants.

Before deliberating upon the relief it transpires that the official defendants have acted in derogation to rules guidelines in derogation to notification on a mistaken assumption either because of negligence or deliberately in considering Nowpora as a village and appointed defendant no.6. There is no evidence on record to show that the defendant no.6 has induced to work in derogation to rights of plaintiff which paves a leniency of consideration by official in favour of defendant no.6 as her appointment could not stand on the basis of decision struck for determination in the instant case.

Therefore, the relief’s as prayed for by the plaintiff in the instant suit are passed in her favour declaring the appointment of defendant no.6 as FMPHW under NRHM as null and void and declaring the plaintiff to be entitled to the said post and further an injunction is passed against the defendants from not giving an effect to the said order. The defendants are further directed to appoint plaintiff in place of defendant no. 6 as FMPHW under NRHM. The defendants are at liberty to consider the defend