JUDGMENT 1. THE writ petitioner who was initially appointed as Typist in Hooghly Chinsurah Municipality by an order of the Chairman of the said Municipality was appointed as Assistant Head Clerk (monitering performance) with effect from 7th July, 1982. Such appointment of the petitioner as Assistant Head Clerk with effect from 7th July, 1982 was further approved by the Board of Commissioners in its meeting dated 17th July, 1982. In these state of things one Brojo Gopal Banerjee the respondent No. 3 filed a Title Suit being [no. 228 of 1984 in the First court of Munsif for declaration that he is not an Assistant to Head Clerk but an assistant Head Clerk in the said Municipality and he is still working in the post of Assistant Head Clerk and he is, therefore, entitled to all arrears of pay and other benefits including promotion and seniority. The said suit was thus filed long after the writ petitioner was appointed in the post of Assistant Head Clerk in the said Municipality. Evidently, in the said suit neither the writ petitioner was made a party defendant, nor any interim order was prayed for restraining the respondent municipality from giving any effect to the appointment, if any made, in the post of Assistant Head Clerk to the writ petitioner or to any other person pending disposal of the suit. That again during the pendency of the suit, by an order dated 7th January, 1989 passed by the Chairman of the Municipality, the petitioner was promoted to the post of Head Clerk which appointment was, however, ratified by the authorities of the said municipality in all subsequent proceedings. It is further more significant to note that such promotion of the writ petitioner to the post of Head clerk was also not challenged by said Brojo Gopal Banene, nor any interim order was prayed for restraining the said Municipality to promote any other persons beside said Brojo Gopal Banerjee to the post of Head clerk in the said Municipality. In these state of things, the suit was, however, decreed in favour of said Brojo Gopal Banerjee declaring that he was still working in the post of Assistant Head Clerk and he was entitled to the benefits arising from the said post. In these state of things, the suit was, however, decreed in favour of said Brojo Gopal Banerjee declaring that he was still working in the post of Assistant Head Clerk and he was entitled to the benefits arising from the said post. Most surprisingly by the self same decree the learned Munsif declared that the change of designation of the writ petitioner by the Municipality as the Assistant head Clerk and/or the Head Clerk was illegal and not binding upon the plaintiff, even though the writ petitioner was not a party to the said suit. The decree, therefore, if there be any in the form as above against the writ petitioner, who was not a party to the suit, is not binding upon the petitioner. Furthermore, during the pendency of the suit the petitioner was promoted to the post of Head Clerk and the decree was not prayed for setting aside such promotion. 2. THEREFORE, since after 7th January, 1989 the writ petitioner held the post of Head Clerk while saiid Brojo Gopal Banerjee held the post of Assistant Head Clerk by virtue; of the said decree and both of them were superannuated from their respective posts in normal course. The aforesaid suit having been decreed on 29th day of November. 1995 the respondent Municipality passed an order for reversion of the writ petitioner to the post of Assistant Head Clerk which has been impugned in the writ petition. The learned advocate appearing' on behehal of the Municipality seriously contended that the promotion of the writ petitioner to the post of Head Clerk having not been sanctioned by the State Government pursuant to the provisions of Section 66 of West Bengal Municipality act, 1932, the same cannot have any effect in the eye of law and the writ petitioner was rightly reverted to the post of Assistant Head Clerk by the authority concerned and more so, when the decree passed in the aforesaid title suit was passed declaring that said Brojogopal Banerjee was the Assistant Head Clerk in the said Municipality, but not the writ petitioner. The aforesaid contention on the part of the respondent municipality is patently anomalous, in as much as, the order of reversion was not made because the post of Mead Clerk in the said Municipality was not in existence, while the petitioner was promoted to the said post without creation of the same upon sanction and/or approval by the State government. On the other hand, it appears from the documents annexed to this writ petition that one Santanu Kumar Mallick (since deceased) was holding the post of Head Clerk in the said Municipality and on ;his death the same lay vacant and the writ petitioner was promoted to the said post by an order of the Chairman of Hooghly Chinsurah Municipality, which again was approved in a meeting of the Commissioners and in all subsequent occasions. Section 66 of the said Act provides for creation of posts of officers and employees and for fixing up of salaries and allowances to be paid and granted to such officers and employees by the commissioner of a Municipality as its meeting with the prior sanction of the State Government, if the number of posts to be created in a year in a Municipality are more than 1% of the total number of posts of officers and employees existing in the year immediately preceding. The said section did nowhere speak about the sanction! of the State Government for trie purpose of promotion in an already existing post in the Municipality. The post of Head Clerk in the said Municipality could not be proved to be not in existence, nor the order of reversion was made on that score. The impugned order of reversion was made on the basis of the said decree which was not binding on the writ petitioner in law and had the effect of creation of an extra post of Assistant Head Clerk in the said municipality, particularly when by the said decree Brojogoal Banerjee was declared as Assistant Head Clerk to the said Municipality. The said municipality did nowhere disclose that there the post of Assistant Head Clerk while said Brojogopal Banerjee was declared as Assistant Head Clerk of the said Municipality by the aforesaid judgment and decree. The said municipality did nowhere disclose that there the post of Assistant Head Clerk while said Brojogopal Banerjee was declared as Assistant Head Clerk of the said Municipality by the aforesaid judgment and decree. The aforesaid judgment and decree by no means whatsoever could have the effect of holding that Brojogopal Banerjee was holding the post of Head Clerk white the petitioner was reverted to the lost of Assistant Head Clerk in the absence of any order of promotion in favour of Brojogopal Banerjee. The aforesaid decree at best had the effect that Brojogopal Banerjee notionally held the post of Assistant Head clerk. Therefore, the order of reversion of the writ petitioner to the post of Assistant Head Clerk in the said Municipality after the said decree, in the absence of any material that in fact there were two posts of Assistant head Clerks in the said Municipality was absolutely without authority and further the same ran contrary to the provisions of Section 66 of the said Act. Thus, the impugned order of reversion of the writ petitioner on the grounds as aforesaid cannot be sustained. 3. HOWEVER, on behalf of the respondent No. 3 namely, Brojogopal banerjee it was contended that he having been declared as the Assistant head Clerk in the said Municipality which is the feeder post for promotion to the post of Head Clerk the writ petitioner who was not even entitled to the said post of Assistant Head Clerk was not eligible for consequential promotion to the post of Head Clerk and such promotion of the petitioner was absolutely beyond the competence of the Municipality. Before going into the merits of aforesaid contention it is significant to note again that it furthermore clarifies that there was no other post of Assistant Head clerk in the said Municipality except one, which could be held by the writ petitioner before his promotion to the post of Head Clerk. The suit was filed by said Brojogopal in 1984 while the writ petitioner was very much holding the post of Assistant Head Clerk with effect from 7th July, 1982 and said Brojogopal Banerjee did not obtain any order in the said suit restraining the writ petitioner from holding such post. Furthermore protection of the writ petitioner to the post of Assistant Head Clerk was further approved by the Directorate of Local Bodies under Memo No. 1456 dated 30. 9. Furthermore protection of the writ petitioner to the post of Assistant Head Clerk was further approved by the Directorate of Local Bodies under Memo No. 1456 dated 30. 9. 88 during the pendency of the suit. Further during the pendency of the said suit, the petitioner was promoted to the post of head Clerk in the year 1989 as aforesaid and. again in the pending suit no prayer was made; restraining the respondent Municipality from promoting the writ petitioner to the post of Head Clerk. Therefore, the decree as aforesaid had however no effect upon the petitioner holding the post of Head Clerk. The said decree was also not binding upon the petitioner. However, the question as to the promotion of the writ petitioner to the post of Head Clerk from the feeder post of Assistant Head Clerk on the ground that the petitioner in the eye of law could not be held to had been designated as the Assistant Head Clerk, cannot be gone into either in this will petition or at this stage. Particularly, in view of the fact that said Brojogopal Banerjee neither in his suit nor by way of any independent proceeding could challenge the promotion of the writ petitioner Co the post of Head Clerk at any point of time. That again though by virtue of the said decree said Brojogopal Banerjee could be said to have held the post of Assistant Head Clerk, but such decree was not for declaring him as the Head Clerk nor such decree could be interpreted as such decree could be interpreted as such in the absence of any order for promotion of Brojogopal Banerjee to the said post by the authority concerned. The said promotion took effect from 7th January, 1989. Both the writ petitioner and the respondent No. 3 have already been superannuated in normal course in the meantime. The re-opening of the question of promotion of Brojogopal to the post of Head Clerk will be in futility. The said Brojogopal Banerjee having not independently challenged such promotion in favour of the writ petitioner to the post of Head Clerk and the order of promotion having been allowed to be given effect to during the entire service periods of both the writ petitioner and the respondent No. 3, the challenge, if any, at this stage, has become infructuous and therefore, this court should not entertain the same. 4. IN all the views as aforesaid, the impugned order of reversion of the writ petitioner dated 5th December, 1995 passed by the Chairman, hooghly Chinsurah Municipality shall stand set aside and the petitioner shall be deemed to have held the post of Head Clerk till before his superannuation and he will thus be entitled to all benefits including all retirement benefits in the said post. This writ petition is accordingly allowed. Writ allowed.