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2010 DIGILAW 34 (JK)

Gazala Showkat v. National Insurance Co. Ltd.

2010-02-03

MUZAFFAR HUSSAIN ATTAR

body2010
1. Respondent no.3 initiated a special recruitment drive in the year 1991 for making selection and appointment to various categories of posts including Assistant (Typist). Petitioner also participated in the selection process initiated by respondent no.3. The selections/appointments were made in the year 1991, but petitioner was not appointed. Feeling aggrieved of her.non selection/appointment, petitioner filed SWP No. 505/1992 in this Court. The Court issued notices to the respondents on 17th September 1992. Petition was admitted to hearing and interim direction, which provided for consideration of the petitioner for appointment on post of Assistant Typist, was made absolute. The writ petition was taken up for final disposal on 20th August 1997. The writ petition was disposed of in terms of the consensus arrived at between the parties. The operative part of the judgment is reproduced as under: "When the matter came up for consideration today good sense prevailed and both parties agreed to the disposal of the matter by the following consent order: That respondent no. 3 shall hold or caused to be held a special test at Srinagar/Jammu to accord consideration to the petitioner for her selection/appointment to the post of assistant typist in accordance with rules/guidelines/criteria, if any, in force but in relaxation of the age bar as already ordered by this court as interim measure. The requisite test shall be arranged to be held within four months from the date of receipt of this order of in case respondent-company is holding any general test within the prescribed period along with all other candidates, petitioner shall be informed accordingly to participate in that test. The competent authority shall thereafter pass appropriate orders in the matter." 2. Thereafter a special test was conducted for petitioner. On the basis of said test, she was selected and appointed as Assistant Typist by virtue of order dated 11th December, 1997. This petition is filed with the prayer that respondents be directed to treat the petitioner to have been appointed as Assistant (Typist) in the respondent company with effect from 18.3.1992 and direction be issued to treat the petitioner at par with the employees appointed in the respondents company in the year 1991 and all consequential benefits be ordered to be given to her. 3. Heard learned counsel for parties. Considered the matter. 4. Mr. 3. Heard learned counsel for parties. Considered the matter. 4. Mr. H.I. Hussain learned Senior Advocate appearing for petitioner submitted that this Court while passing judgment on 20th August, 1997 had directed the respondents that after conducting special test competent authority shall pass appropriate orders in the matter, which expression used by the Court in the said judgment, in the wisdom of the learned counsel, would mean, that petitioner after qualifying the special test if found possessing merit for being selected and appointed as Assistant (Typist), in such eventuality, respondents were duty bound to appoint the petitioner from the date on which the interim order was passed by the Court in the earlier writ petition. Learned counsel in support of his contention referred to Balwan Singhs case SWP No. 904/1993 decided on 2nd June, 1999. 5. Mr. J.A. Kawoosa learned AAG submitted that in view of consent order passed by the Court, special test was conducted for the petitioner arid in pursuance of that special test, petitioner after being found to possess the requisite merit, was selected and appointed on 11th December, 1997. Petitioner was, accordingly, put on probation. Learned counsel further submitted that appointment of petitioner cannot be dated back to the year 1991 when the appointment to various posts were made in pursuance of special recruitment drive initiated by respondent no.3. Learned counsel further submitted that in terms of recruitment rules the appointment of a person commences for the date when he/she would be appointed to the post by the competent authority. Learned counsel further submitted that writ petition is meritless and deserves to be dismissed. 6. The Judgment dated 20th August, 1997 proceeds on the consent given by the parties and its disposal on the terms mentioned in the order were agreed upon by the parties. The agreement arrived at between the parties resulted in passing of the order dated 20th August, 1997. It was agreed that a special test will be held at Srinagar/ Jammu to accord consideration to petitioner for her selection/appointment to the post of Assistant (Typist) in accordance with rules/guidelines/criterion, if any, in force. The requisite special test was held and in pursuance of that special test, petitioner was selected and appointed as Assistant (Typist). The parties are bound by the consent order. None of the party can wriggle out of the said order. The requisite special test was held and in pursuance of that special test, petitioner was selected and appointed as Assistant (Typist). The parties are bound by the consent order. None of the party can wriggle out of the said order. Petitioner having been selected and appointed on a particular date, in service jurisprudence, her services will commence from the date of her appointment. No rule is brought to the notice of the Court to show that when a person is appointed to a service on a particular date her appointment can be ordered to commence from the earlier date. The submission of learned counsel for petitioner is that the expression used in the judgment dated 20th August, 1997 "that competent authority shall pass appropriate order in the matter" would mean that if the petitioner was selected and appointed then her appointment would date back to the year 1991. The submission so made is not in consonance with the judgment passed by the Court. The expression used in the judgment would mean that after conducting special test, competent authority would pass appropriate orders, viz. either to select and appoint the petitioner or not to select and appoint her, depending her performance in the said test conducted by the respondents. 7. The further contention of the learned counsel for petitioner is that in view of the law laid down in Balwan Singhs case, petitioner gets right of an appointment from the year 1991. In the present case, the contention of the learned counsel for petitioner for appointment was not considered on the basis of her performance in the earlier selection process. Petitioner, in fact, consented for undergoing a special test, so as to allow the authority to adjudge her merit and suitability for being selected and appointed as Assistant (Typist). No benefit can be derived by the petitioner from the Balwan Singhs case, in as much as, the subsequent appointments were made on the basis of earlier selection process and not in furtherance of fresh selection process. 8. Learned counsel also referred to the order dated 17th of September, 1992 vide which an interim direction passed earlier was made absolute which provided that petitioner be considered for the post of Assistant (Typist), and submitted that petitioner was thus to be considered for being appointed from the year 1991. 8. Learned counsel also referred to the order dated 17th of September, 1992 vide which an interim direction passed earlier was made absolute which provided that petitioner be considered for the post of Assistant (Typist), and submitted that petitioner was thus to be considered for being appointed from the year 1991. The interim direction passed by the Court got merged into the final judgment dated 20th August, 1997. The final judgment proceeded on the agreement of the parties. No benefit can be derived by the petitioner from the interim direction. The petitioner is precluded from maintaining this petition on the principle of estoppel, in as much as the earlier petition was not decided on merits but on the consent of parties. 9. For the above stated reasons this petitioner being meritless is accordingly dismissed along with all connected CMP(s).