M. Yaqoob Mir, J.
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:
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. l 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 Respondent No. 1 aggrieved there of filed the suit for declaration before the court of Munsiff, which was withdrawn and later on filed a fresh suit before the court of City Judge Srinagar.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, where-under 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. Appellant's 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 issues were placed on record and learned trial court reflected in the order-dated 12.7.2002 that issues are framed, respective advocates have taken note of the issues. It appears that the draft issues have been taken as framed issues. Learned trial court in its detailed Judgment has dealt with this matter and has concluded that draft issues were the main points as had emerged from the respective pleadings of the parties for determination. Learned trial court in its lucid Judgment has qualified that no prejudice due to non-framing of issue has been caused. Neither mis-carriage of justice nor prejudice due to omission of framing of issues is noticed.
6. The object of framing the issues is to ascertain as to upon what material propositions of fact or law, the parties are at variance so that right decision can be arrived at. In other words it is to make parties alive as to on what material fact and point of law they are to project their case. If by mentioning the points for determination or for that purpose draft issues clearly indicate as to what are the points to be determined, then the object of framing of issues is automatically achieved.
7. Law has to be followed in its strict sense. The framing of issues cannot be avoided. It is an important step for the trial of the case. So Courts are required to be cautious while considering the case stage by stage. As the omission to frame issues may result in causing the serious prejudice, resultant effect will be mis-carriage of Justice, which by no stretch of imagination shall be permissible. After all a long drawn legal battle spreading over a period of years, if on or at final stage will warrant re-doing what has been done, same shall be disastrous, sufferers shall be the parties, so the framing of issues is imperative.
8. Omission to frame the issues can be termed to be irregularity, when has no effect of prejudice cannot effect the final result, when points for determination arising out of respective pleadings are mentioned and parties have consciously led the evidence and no prejudice is noticeable, then omission to frame issues will not effect the decision of the case and under such circumstances suit can be decided without formally framing the issues. It is quite relevant to quote from Judgment reported in AIR 1973 SCC page 1104:
62. It is true that the issues were rather broadly framed and could have been fuller. But, after considering the nature of charges and their particulars, the cases set up by the Directors in defence, the evidence led, and the very full and fair opportunities given by the learned Company Judge to the Directors to defend themselves, we are unable to agree with the Division Bench that the Directors were in any way handicapped by alleged vagueness of charges or a failure to frame issues more fully or that a good deal of evidence led could be ignored for these reasons. It was pointed out by this Court, in Nagubai Ammal v. B. Shama Rao : [1956]1SCR451 , with regard to the rule that evidence should not be looked into at all on matters neither pleaded nor put in issue:The true scope of this rule, is that evidence let in on issue on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But, that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.
Formulated question No. 2:
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
9. While determining the formulated question No. 1, it is clear that the draft issues appear to have been treated points on which parties are at variance. The finding was required to be returned issue-wise. The trial court has not returned the finding on the treated issue. The draft issue treated as issues are reproduced as:
I. Whether the suit of the plaintiff is not maintainable in its present form...OPD
II. Whether the plaintiff has no cause of action against the defendants...OPD
III. Whether none of the rights of the plaintiff has been infringed...OPD
IV. Whether the plaintiff has a right to be considered for appointment as Jr. Assistant...OPP
V. Whether the confirmation of defendant No. 4 is illegal and unlawful...OPP
VI. Whether the plaintiff was not appointed/engaged by the defendants...OPD
VII. Relief.
10. From the Judgment it is clear that the issue-wise findings has not been returned, most of the issues have been left undecided. Trial court seem to have ignored the draft issues, when the finding on the treated issues was imperative, therefore has acted with material irregularities. Non-return of findings on the issues above quoted renders the Judgment and decree of trial court as well as 1st appellate court as illegal.
Formulated question No. 3:
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.
11. Admittedly Subordinate Service Recruitment Rules are not applicable to Class-IV posts, instead Jammu and Kashmir 'Civil Services Classification, Control and Appeal Rules' are applicable. Section-24 of the Subordinate Services Recruitment Rules reads as under:
Section-24. Repeal and Saving: Save as otherwise provided in these rules, if immediately before the commencement of these rules or before the commencement of the Jammu & Kashmir State Subordinate Service Recruitment Board Act, 1990, there were or are in force in the State, any rules, notifications or orders corresponding to these rules, those rules, notifications or orders shall stand repealed.
Provided that the repeal shall not affect the previous operation of any law, rule, notification or order so repealed or anything duly done or suffered thereunder:
Provided further that any application invited or received or any other process initiated for selection of candidates for recruitment to the subordinate service by any authority before the commencement of these rules shall be transferred to the board and the Board may take such action as it may consider necessary By order of the Governor.
12. Plain reading of Section- 24 is indicative of the fact that before the commencement of these rules or the rules 1990 any other rule, notification or orders shall stand repealed. So whatever is provided in these rules have prevailing force cannot be superceded by other rules. These rules as per Section- 2, Clause -B are not applicable to Class IV posts, therefore, the question of superceding these rules by Classification, Control and appeal rules, has no meaning. Classification, Control and Appeal rules are not in a conflict with these rules. In case of conflict it is Subordinate Service Recruitment Rules, which will prevail. The applicability of the act to Class IV posts is saved the words as figure in Section-24, ' Save as otherwise provided in these rules. ' These rules have prevailing force. Reading Section-213 and Section 24 conjointly non-applicability of these rules is saved. So in view of the saving Clause it is Classification, Control and Appeal rules, which apply to Class IV employees, except for saving Clause the Classification, Control and Appeal rules to the extent of its in-con-sistency cannot supercede the Subordinate Services Recruitment Rules. Hence held that Classification, Control and appeal rules will not supercede the Jammu & Kashmir Subordinate Recruitment Rules. However, so far as Class IV posts are concerned question of superceding is imaginary, so the question of super cession is not involved.
13. This being so, the opinion of the trial court regarding the adherence to Rule-14 of Classification, Control and Appeal Rules is inconformity with law.
14. Determination of the formulated question No. 2 leads to the conclusion that Judgment and decree recorded by the trial court and the 1st appellate court are not found in consonance with law, hence set-aside. Case remanded back to trial court, to record the Judgment afresh issue-wise (as per draft issues) on the basis of available evidence with reasonable dispatch, before recording Judgment both the parties if they choose be given opportunity of final hearing i.e. their engaged advocate shall be given audience.
Appeal as such succeeds. Decree be drawn up. Copy of the decree as well as Judgment be sent to 1st appellate court and trial court alongwith respective record.