This is plaintiffs second appeal.

The plaintiff had filed suit for declaration that he held the permanent post of Graduate Assistant Teacher in Aided Malay High School and that the order dated 24.3.75 was void and illegal, on the allegations that he had been appointed Graduate Asstt. Teacher in the said school in the vacancy caused by up gradation of the permanent incumbent Shri B.B.Chakravorty by order 3.7.69 tempor­arily. The plaintiff had joined on 7.7.69. The appointment was regularised and the plaintiff was allowed to serve in substantive permanent post continuously. Sri B.B.Chakravorty was appointed in the permanent post of Asstt. Head Master with effect from 1.5.72, The plaintiff applied for confirmation on 14.8.1974. The plain­tiff's service was terminated by notice dated 18.8.74, w.e.f. IS.7.74, but it did not take effect, and the plaintiff was allowed to continue. However, by order dated 24.3.75 the plaintiff's service was terminated with immediate effect. Hence the suit was filed.

The respondents the Management Committee and others contested suit on the ground that the plaintiff had held a temporary appoin­tment in a temporary vacancy, that after advertisement on selection made in which the plaintiff was also considered but was not selected, by order dated 24.3.75 the person selected was appointed, and the plaintiff was appointed to another post in a scheme but the plaintiff did not join.

The learned trial Court framed the issues and held that the impugned order dated 24.3.75 was illegal and the plaintiff was entitled to relief. The suit was decreed. There were two appeals by the defendants. The learned appellate Court below held that the State of Assam appellant and other Government officials appe­llants had not been served with notice under section 80 C.P.C. when the suit was filed and further that the order dated 24.3.75 was valid. The appeals were allowed and the suit was dismissed.

Aggrieved the plaintiff has come in appeal and Sri J.P.Bhattacharjee, learned counsel on his behalf has raised two contentions firstly that when the suit was filed on 24.3.1975 the defendants 16 to 18 the State of Assam and its two officers were only proforma defendant and no relief had been claimed against them, but later when by amendment dated 24.4.76 relief was claimed against them and the said defendant had ceased to be proforma defendants, notice under section 80, Code of Civil Procedure hereafter the Code had already been served on them and hence the view taken by the appellate Court that the suit was bad when it was filed on 24.3.75 for want of notice, was erroneous and secondly that there was no order of termination of service as such for order dated 24.3.75 was not an order of termination of service and hence the termination was illegal. Sri B.Banerjee, learned counsel for the State of Assam has refuted the submissions for the appellant.

As regards the first submission for the appellant, the admitted facts are that when the suit was filed on 24.3.75, no notice under section 80 of the Code had been served on defendants 16 to 18. However, notice dated 3.4.75 was served on defendant No. 17 on 5.4,75, on defendant No.18 on 7.4.75 and on defendant No. 16 on 9.4.75, and an amend­ment in plaint was made by order dated 24.4.76.

The contention for the appellant is that since the said defend­ants were only proforma defendants and no relief was claimed against them the suit filed against them, then, without notice was not bad and subsequently notice had been duly served and hence there was no defect in the suit as could be the reason for its dismissal.

The suit filed on 24.3.75 was also against defendants 16 to 18 and even though defendants 17 and 18 were stated to be proforma defendants, the defendant 16 was not stated to be so, for in para 10 of plaint it was stated that advance copy of plaintiffs repres­entation had been sent to the defendants 17 and 18, but till then no report had been received. The relief claimed was for declaration and

Click Here to Read the rest of this document