M ALIK INAYAT-UR-REHM AN, J. The instant civil revision petition under Section 115, C.P.C. has been filed against the impugned consolidated judgment/decree dated 24-02-2021, passed by the learned Touring District Judge Gilgit; whereby, the learned First Appellate Court has accepted CFA No.05/2020 filed.by the respondents/defendants and has dismissed CFA No.04/2020 filed by the present petitioner/plaintiff.
2. Briefly stated facts for filing of the instant revision petition are that the present petitioner/plaintiff instituted a suit (Civil Suit Nos.116/2016, 09/2018) in the Court of the learned Senior Civil Judge Gilgit, for declaration and perpetual injunction along with consequential relief with the contention that she is entitled for appointment on the suit post of EST (BS-14) being top on the merit list of waiting candidates and being a resident of Hard Area Napura and challenged recommendations of DSC passed in favour of respondent No.7 with the claim that the respondent No.7 has contracted marriage and is permanently residing with her husband at Amphary Gilgit thus not eligible to occupy the suit post. The petitioner had prayed for cancellation of aforementioned recommendations of DSC regarding the disputed post and also prayed for issuance of directions to the present respondents to prepare a fresh merit list of candidates of Napura Hard Area by excluding the name of respondent No.7.
3. The defendants contested the suit by filing their written statement in the trial court. The learned Trial Court vide judgment/decree dated 12-12-2019 had partially allowed the suit in favour of the present petitioner and directed the present respondents to appoint the petitioner on the vacant/disputed post and further directed that petitioner will be entitled for salary and benefits from the date of joining the disputed post.
4. Feeling aggrieved and dissatisfied with the aforementioned judgment/decree of the learned trial court, both the parties filed their separate appeals in the court of the learned Touring District Judge Gilgit. The present petitioner filed CFA No.04/2020 while the present respondents Nos.1 to 6 filed CFA No.05/2020 against the judgment/decree of the learned Trial Court. The learned First Appellate Court vide the consolidated impugned judgment/decree dated 24-02-2021 dismissed the appeal (CFA No.04/2020) filed by the present petitioner while accepted appeal (CFA No.05/2020) filed by the present respondents Nos.1 to 6 and remanded the case back to the learned Trial Court to decide the same on merits; hence, the present petitioner has filed the instant Civil Revision Petition.
5. The learned counsel for the petitioner submitted that the respondents had advertised posts of EST (BS-14) for Hard Area Napura and invited applications from interested candidates who belong to Napura. Petitioner along with six other candidates qualified the written test and after interview, respondents Nos. to 4 issued the merit list wherein respondent No.7 has been appointed for the disputed post and name of petitioner has been reflected in the top of waiting list candidates. The learned counsel has further contended that after getting married in the year 2015, respondent No.7 has been residing with her husband at Lali Mohallah Amphari and she is not entitled for appointment against the post specified for Hard Area Napura. He also submitted that on 07-10- 2019, petitioner and respondent No.7 filed an application under Order XXIII, Rule 3, C.P.C. for compromise decree between the parties and counsel for the respondent No.7 got recorded his statement on behalf of respondent No.7 before the learned. Trial Court and the learned Trial Court allowed the said application and passed partial judgment/decree dated 12-12-2019 and directed the respondents to appoint the petitioner on the disputed post and declared that petitioner will be 'entitled for salary and benefits from the date of joining the disputed vacant post which judgment is wrongly upset by the learned First Appellate Court' The petitioner prayed for setting aside the impugned judgment of First Appellate Court and also to modify the partial judgment/decree passed by the learned Trial Court by declaring the petitioner/plaintiff entitled for salary and benefits from the date of appointment of her colleagues/badge mates in the year 2016.
6. The learned Deputy Advocate General and legal advisor appearing for the respondents have strongly controverted the arguments advanced by the learned counsel for the petitioner and have supported the impugned judgment/decree passed by the learned First Appellate Court by contending that the learned Trial Court has passed the judgment/decree on the basis of compromise effected between the petitioner and the respondent No.7 which is not maintainable in the eyes of law. They prayed for upholding of judgment/decree of the First Appellate Court and for dismissal of the instant Civil Revision Petition.
7. I have considered the arguments advanced by the learned counsel for the parties and with their able assistance I have gone through the available record.
8. From perusal of record with the able assistance of the learned counsel for the parties it reveals that the respondent No.7 along with some other were appointed in the year 2016, but after marriage of the respondent No.7 she was residing with her husband out of the Hard Area Napura and the petitioner being top on the waiting list filed the Civil Suit in the learned Trial Court against the appointment of respondent No.7. Record further shows that the learned Trial Court has partially allowed the Civil Suit of the present petitioner on the basis of compromise effected between the petitioner and respondent No.7 outside of the Court in presence of the notables of the area and in consequence thereof the respondent No.7 withdrew from her appointment and requested for disposal of the case. The learned Trial Court partially allowed the Civil Suit in favour of the petitioner and directed the respondents to appoint her against the disputed/vacant post and allowed her salary/benefits attached to the appointment w.e.f. her joining the disputed post.
9. Since the respondent No.7 had surrendered her post/defence in favour of the petitioner and had accepted the stance of the petitioner - regarding entitlement and eligibility of the petitioner as averred in the plaint and there is no denial of the facts on part of the other defendants that plaintiff is otherwise not eligible and is not on top of the waiting list or the suit was not filed by the plaintiff within limitation. The cause of action accrued to the plaintiff is continued and is still alive. The plaintiff had not rendered any services in the Education Department nor she has any appointment order therefore cannot be allowed appointment and salary benefits from back dates.
10. Since the dispute was between plaintiff and defendant No.7 and the official defendants do not contest the eligibility of the plaintiff as to her being resident of Napura Hard Area and having successfully qualified the test/interview for the subject post and top of the waiting list and defendant No.7 has despite knowledge never contested the correctness of the judgment/decree passed by the Trial Court before the learned First Appellate Court to move it to pass the impugned judgment/decree therefore the impugned judgment lacks merit and warrants interference of this Court in revision.
11. For what has been discussed above, the instant revision petition is liable to be allowed with slight modification that the petitioner is entitled for her appointment against the disputed post w.e.f. date of passing judgment/decree by this Court. The other incumbents were appointed by the Education Department in the year 2016 in pursuance of the disputed test/interview therefore petitioner is at liberty to seek her seniority from the competent forum if so advised subject to laws governing the matter.
12. In view of the above and subject to aforesaid this Civil Revision petition is allowed setting aside the impugned judgment and maintaining the judgment/ decree passed by the learned Trial Court with amendment as above noted. Parties to bear their own costs. File after due completion be consigned to record.