1. When these two second appeals came up for hearing before a learned Single Judge of this Court, they were referred for decision by a Division Bench. The Division Bench thought that apparently there was a conflict between two Bench decisions of this Court in Ramcharan Mahto V/s. Custodian of Evacuee Property, Bihar, AIR 1964 Pat 275 and State of Bihar V/s. Jiwan Das Arya, 1970 0 BLJR 843 on the question as to whether the right to get a notice under Section 80 of the Code of Civil Procedure (hereinafter called the Code) can be waived or deemed to have been waived under certain circumstances. The Division Bench also thought that the vires of Section 80 of the Code had been challenged; it is, therefore, better that the case should be referred to a larger Bench, This is how these two second appeals came up for hearing before us.

2. The plaintiffs who are Engineers in the Public Works Department of the Government of Bihar challenged certain decision which is said to have been taken by the Cabinet of the Gov- ernment of Bihar on the 17th of January, 1968 in regard to the determination of 4 seniority of defendant No. 4 vis-a-vis the plaintiffs and other questions relating thereto. The said defendant is also an Engineer in the Public Works Department of the Government of Bihar. Various facts were pleaded in the plaint and in the written statement filed by defendant No. 4 as also by the State of Bihar, defendant No. 1, and its officers, defendants 2 and 3. Various issues were tried by the trial Court including the issue as to whether the suit was bad for want of a notice under Section 80 of the Code. The trial Court decided all the issues against the plaintiffs and dismissed the suit They went up in appeal. The appeal was heard by the Additional District Judge, 3rd Court, Patna, and he framed the following points for decision-

"1. Whether the suit was maintainable and the plaintiffs have got cause of action for suit ?

2. Whether the impugned decision, that is, the decision to appoint defendant No. 4 from 17-11-1951 in B. E. S. Class II on permanent basis is justiciable ?

3. Whether the suit is hit for non-service of notice under Section 80, Civil P. C. ?

4. Whether defendant No.4 was qualified to be appointed as an Assistant Engineer in B. E. S. Class II as a direct recruit in the year 1949 ?

5. Whether the Government of Bihar had kept vacant and continued the vacancy of one of the posts of permanent Assistant Engineer in B. E. S. Class II advertised to be filled up by direct recruitment in the year 1949 ?

6. Whether the impugned decision taken on 17-1-1968 by the Council of Ministers to appoint defendant No. 4 as permanent Assistant Engineer in B. E. S. Class II with effect from 17-11-1951 is legal, valid, reasonable and in accordance with the provisions of the Constitution of India ?

7. Is the suit bad for the defence (sic) of parties ?

8. To what relief or reliefs, if any, the plaintiffs are entitled ?"

Point No. 3 was decided by the learned Additional District Judge against the plaintiffs; that made the suit filed by them not maintainable. The lower appellate Court, however, proceeded to decide other points also. A decision of point No. 2 also was given against the plaintiffs and it was held that the decision taken by the Cabinet was not justiciable and unless an order expressed in the name of the Governor followed, the plaintiffs had no cause of action. It may also be added on the authority of the decision of the Supreme Court in Bachhittar Singh V/s. State of Punjab, AIR 1963 SC 395 that unless the order was communicated to the parties, it was not effective. Even after the decision of this point against the plaintiffs, the learned .Additional District Judge proceeded to decide points 4, 5 and 6 and on those points recorded findings against defendant No. 4. Although in view of its decision on points 2 and 3, the lower appellate Court maintained the dismissal of the suit, defendant No. 4 feeling aggrieved by the decision o