ORDER:— There is delay in applying for the substitution of the heirs of the original petitioner, Sri Dhiraj Ghosh, who has since died. There was also an application for condonation of delay in making the substitution application. Having heard Sri Chatterjee, learned Counsel for the petitioner, the delay in making the application for substitution is condoned and the heirs of the deceased petitioner are substituted.

2. This is an unfortunate case, unfortunate because of the manner in which the litigation has proceeded. Now, it is not necessary to determine as to who is responsible for such state of affairs. The original petitioner alleged that he was appointed in the Publicity Department of erstwhile Bengal Government, and that from 1944 to 1951 he continued in that position. According to him, he was drawing a salary of Rs. 470 plus usual ,allowances in or about July, 1951. He was indisputably a temporary employee. It is stated that in 1949 Civil Service (Temporary) Rules, 1949 came into being. In March, 1951 the petitioner applied for the post of Regional Tourist Officer to UPSC through the Government of West Bengal.

3. According to the petitioner in July, 1951 the deceased petitioner had joined on deputation the Central Government service and was placed in the Ministry of External Affairs. The original petitioner claimed that he was Press Attache in the Indian High Commission at Dacca. He asserted that his lien in service was retained with the State of West Bengal. According to the original petitioner, the Government of India was pleased to offer to the petitioner the post of Regional Tourist Officer in July, 1951; and that the sanction of the President was conveyed in December, 1951. And the petitioner joined Class 1 post in Calcutta. The original petitioner asserted that on 30th May, 1951 the petitioners probation period for six months expired and there was no extension thereto thereafter. In September, 1955, the petitioner was informed that his services were no longer required and he was given one months notice. Later on, this communication was modified stating that the petitioner was granted leave till 29th February, 1956 when his services would be terminated. Therefore, the petitioners services were terminated w.e.f. Ist March, 1956. The petitioner asserted that he was offered Class II post in Government of India on 20th July, 1956 and that under pressue he had to accept the same. He further alleged that he worked on temporary basis till, July, 1957 at a monthly salary of Rs. 500.

4. According to the petitioner, from Ist August, 1957 to 28th February, 1959 he worked as Seamens Welfare Officer; and in 1959 the present suit out of which this application under Article 136 of the Constitution of India arises, was filed in the High Court of Calcutta claiming, inter alia, that the termination of services of the petitioner was bad, and the petitioner had continued in the service. It appears that the suit was ultimately disposed off finally 28 years after its institution on 13th March, 1987. At the time when the suit was decreed, the petitioner was 80 years old.

5. It is necessary to bear in mind the merits of this application under Article 136 of the Constitution and for that one must refer to the order as recorded by learned single Judge of Calcutta High Court on 13th March, 1987. The said order read as follows:-

"This cause coming on this day for final disposal before the Honourable Mr. Ajit Kumar Sengupta one of the Judges of this Court in the presence of the Advocate for the parties and Mr. Mitra Advocate for the defendant having prayed for a stay of the order and the same having been refused. It is ordered and decreed that the defendant do-by the twentyfourth day of March one thousand nine hundred and eightyseven pay to the plaintiff the sum of Rupees ten thousand and that the defendant do also pay to the plaintiff a further sum of Rupees ten thousand as assessed cost of this suit."

On 21 st August, 1988 the petitioner filed an