Judgment

SINHA, C.J.I. : This appeal, by special leave, is directed against the judgment and decree dated February 17, 1960, of the City Civil Court at Calcutta, decreeing the plaintiffs suit for a declaration and consequential reliefs, to be hereinafter noticed. The appeal arises under very special circumstances, the most notable feature of the case being that it comes direct to this Court from the judgment and decree of the Trial Court, without having gone through the ordinary process of appeal to the High Court of Calcutta. The reason why this happened was that the High Court of Calcutta, and the sitting judges of that Court, were the appellants, having been the principal contesting defendants in the Trial Court, and, therefore, could not, in all propriety, have heard the appeal. That was the reason why special leave was granted to appeal from the judgment and decree of the Trial Court itself.

2. In order to bring out the points in controversy, it is necessary to state the following facts. The plaintiff, who is now functioning as an Additional District and Sessions Judge, was, at the date of the suit filed on September 4, 1958, a member of the West Bengal Civil Service (Judicial). He joined the service on April 1, 1937, as a Munsif, and was duly confirmed on April 1, 1939. In the West Bengal Civil List, corrected up to January 1, 1954, his name appeared against serial No. 53, in the list of Munsifs, Just above him against serial No. 52 was Shri Bibhutosh Banerjee, and the name of Shri Jagadindranath Hore (Respondent No. 2) appeared against serial No. 54. In course of time all Munsifs down to serial No. 52 - Shri Bibhutosh Banerjee in the Civil List aforesaid were appointed to the posts of subordinate judges, according to their seniority indicated in that list. In February 1955, the plaintiff was at the head of the list of Munsifs. In April 1955, the plaintiff noticed that the second respondent aforesaid had been appointed a Subordinate Judge, and the notification of his appointment appeared in the Calcutta Gazette dated April 28,1955, although the plaintiff had not received any order of appointment as a Subordinate Judge. On representation being made by the plaintiff to the High Court, he was informed by the Registrar of the Court that the Court decided to consider his case again in December 1955". In the meantime, several other Munsifs, whose names appeared below that of the plaintiff in the Civil List, were appointed as Subordinate Judges, one after another. The plaintiff then addressed a petition of appeal against the action of the High Court in not appointing him as a Subordinate Judge, to the Governor of the State of West Bengal. That appeal was withheld by the High Court with the remarks "that the action complained of not being disciplinary action, no such appeal lies." The plaintiff thereupon addressed a petition to the Governor, praying that the said petition of appeal withheld by the High Court, as aforesaid, be called for. This petition was also withheld by the High Court with the remarks that in the Cour t s opinion no such petition lay. In April 1956, the plaintiff was appointed to act as an Additional Subordinate Judge, by art order of the High Court. In the meantime, eight Munsifs, who occupied lower places in the Civil List (impleaded as pro forma defendants in the suit) had been appointed and posted as Subordinate Judges, one after another in succession, in the order in which their names appealed in the Civil List. In May 1956, type plaintiff addressed a memorial to the Governor of West Bengal. This memorial was also withheld by the High Court on the ground that no such memorial lay. The plaintiff had sent a copy of the memorial to the Secretary to the Government of West Bengal (Judicial Department) He was informed by the Department that the Governor had declined to interfere. Thereupon the plaintiff instituted the suit, originally against the State of West Bengal, as the principal defendant, and the eight M