Manojit Bhuyan, J. (Oral)-

Heard Mr.B.R.Dey, learned senior counsel assisted by Mr. P.K. Debroy, learned counsels appearing for the appellant. Also heard Mr. F.U.Barbhuyan, learned counsel appearing for respondent no.2.

2. This appeal was admitted for hearing on 3.9.2003 on the following substantial questions of law:

" (1) Whether the Civil Court can declare the appointment of the appellant as illegal in violation of the provisions of Section 9(2) of the Assam Administrative Tribunal Act, 1977 read with Section 2(e) of the said Act which includes appointment as condition of service?

(II) Whether the suit is maintainable in absence of U/S 80 C.P.C. notice?

3. The learned counsel for the parties, at the very outset agrees that an answer to the first substantial question of law would sufficiently determine the fate of this appeal.

4. The facts in brief is that the respondents/plaintiffs instituted Title Suit No.62/1994 challenging the appointment of the appellant (impleaded as defendant no.7 in the suit) to the post of Lower Division Assistant (L.D.A.) in the office of the South Karimganj Irrigation Division under the Irrigation Department, Government of Assam. According to the respondents/plaintiffs they have been working as Muster Roll Workers in the said Division and by virtue of their seniority, the appellant/defendant no.7 could not have been appointed as such. Prayer in the suit was for a decree for declaring the appointment of the appellant/defendant no.7 as illegal, being in breach of norms of seniority and that the respondents/plaintiffs are entitled to be appointed by promotion to the post of LDA.

5. The suit was contested by the defendants and separate written statements were filed by the appellant/defendant no.7 as well as by the defendant nos. 1 to 7 jointly. The grounds urged in the written statements are basically with regard to the jurisdiction of the Civil Court to try the suit in view of the provisions under Assam Administrative (and Pension)Tribunal Act, 1977 and for that matter it was also urged that the respondents/plaintiffs did not have locus standi to institute the suit.

6. The learned Trial Court framed as many as 4 Issues and Issue No.2 thereof pertains to the maintainability of the suit in its present form. The said Issue was decided by holding that there was no legal infirmity and the suit was not barred under the provisions of the Assam Administrative (and Pension)Tribunal Act, 1977. The said finding was based upon the premises that the respondents/plaintiffs are Muster Roll Labourers employed on no work no pay basis having no service facilities and it was only upon this finding the Trial Court held that the suit was maintainable. The Appeal filed by the appellant/defendants separately i.e. Title Appeal No.7/1997 by the appellant/defendant no.7 and Title Appeal No.11/1997 by the defendant Nos. 1 to 6 in the suit, stood dismissed by judgment and decree dated 17.5.2003. The issue no. 2 pertaining to maintainability of the suit did not suffer any adverse opinion of the First Appellate Court.

7. On second appeal before this Court the substantial questions of law so formulated is basically on the maintainability of the suit in view of the bar under Section 9(2) read with Section 2(e) of the Assam Administrative (and Pension)Tribunal Act, 1977 (hereinafter referred to as 'Act of 1977').

8. For better appreciation as to the question involved, it would be apposite to refer to Sub-section (2) and Sub-section (3) of Section 9 of the said Act of 1997, which reads as under:

"9. Finality of decision and bar of suit, power of review of its own order and transfer of pending proceedings- (1)(a)........... (b)...........................

(2) Notwithstanding anything contained in any law, no Civil Court or other authority shall entertain any civil suit or other proceedings with respect to any matter relating to any condition of service of any civil servant or question in any form any order passed by the Tribunal in any appeal or r

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