( 1 ) THIS is an appeal by the defendant, the U. P. Government through the Collector of Allahabad, against the judgment and decree of the learned Civil Judge of Allahabad, dated 23-12-1950, granting to the plaintiff respondent, J. R. Bhatt, a declaration that he "had a right of appeal from the order dated 27-3-1944 and his appeal could not be properly withheld under the rules then in force", and awarding half of his cost from the defendant-appellant. The order dated 27-3-1944 was to the following effect:

"with reference to his application dated 21-9-1943 for permission to return to duty after the expiry of regular leave granted to him upto 31-3-1944, Mr. J. K. Bhatt is informed that the honble the Chief Justice has decided that he cannot be allowed to resume his duties. Accordingly he will be treated to have retired from the public service from 1-4-1944, w. Broome, I. C. S. REGISTRAR".

The relief prayed for by the plaintiff-respondent was that it be declared"that the order of the High Court dated 27-3-1944 inflicting compulsory retirement upon the plaintiff from public service was illegal, ultra vires, null and void and that, notwithstanding that order, the plaintiff be deemed to be in continuous-service from 1-4-1944".

As this relief was not granted to the plaintiff, but only a declaration that he had a right of appeal from that order, there is a cross-objection filed by the plaintiff-respondent praying that he be granted with full costs a declaration in terms, of the aforesaid relief in his plaint.

( 2 ) IT is common ground that the plaintiff was appointed by the High Court on 14-3-1913 as a stenographer in the Civil Court at Gorakhpur with effect from 1-4-1913 and his services were subsequently transferred to the High Court from 6-3-1926. He had put in 29 years of service and was, drawing Rs. 350/- per mensem, the maximum salary of a Judgment-Writer, in February 1942 when he went on a months leave on medical certificate. Before the expiry of that leave he applied for leave for a period of 24 months and 9 days from. 24-3-1942 to 31-1-1944 pending retirement, out of which four months were on full and the rest on half average pay. The plaintiffs case is that this leave was due to him, and that he had to apply for it as he was ill and in a state of deep mental depression occasioned by family circumstances. As the granting of this leave was delayed, the plaintiff saw the then Deputy Registrar, Sri S. K. Banerji. The latter told the plaintiff that the matter could be expedited if he (the plaintiff) gave an undertaking that he would not return to duty after the expiry of his leave. The plaintiff, who belongs to a place called Bihar Sharif in the State of Bihar, was in dire necessity of leave and had packed up his luggage as he was anxious in his the then state of mental depression to reach his home town. He therefore succumbed to the suggestion of Sri S. K. Banerji and gave the undertaking, and after that his application for leave was granted. Before the plaintiff could wind up his affairs at Allahabad and proceed to Bihar Sharif, where he intended to settle down, the August 1942 disturbances broke out, and it became impossible for the plaintiff to go to. Bihar Sharif and settle down there without putting his own life and the lives of the members of his family into jeopardy. He therefore aoplied to the Registrar High Court in august, 1942 for the cancellation of the rest of his sanctioned leave and for permission to resume his duties. This application of the plaintiff was rejected by the Registrar on the ground that two men, messrs. Gupta and Asthana, who had been called; as stenographers from outside, would have to be thrown out if the plaintiff were allowed to return. The plaintiff appealed to the Honble the chief Justice, but he was informed after about 10 months by a communication dated 13-8-1943 that his appeal had been dismissed.

( 3 ) AFTER his application for cancellation of the unavailed portion of his leave h