ORDER This is an application for issue of a writ of certiorari for quashing the order of the Officer on Special Duty, Manipur State Transport dated 24-9-57, by which the petitioner was removed from service. 2. The petitioner was appointed in the Hydro-Electric Board Office by the Chairman of the Hydro-Electric Board Office of the then Government of Manipur as a Motor Driver on 1-6-47 and he continued on a temporary basis in the said Department. By order No. 322 dated 15-5-50 he was appointed or rather transferred as Driver in the Manipur State Transport with effect from 1-5-50 by the Chief Commissioner of Manipur on the scale of pay of Rs. 45-3-75/-. This was after the integration of Manipur in the Indian Union. Then, by another order dated 9-4-52 issued by the Development and Revenue Commissioner and Ex-Officio Secretary to the Government of Manipur, he was appointed as a driver on the scale of pay of Rs. 50-3-80/- with effect from 26-12-51. Thereafter he continued on the revised scale of pay and was drawing increments and his pay was Rs. 65/-per month in February, 1956. 3. On 18-2-56, he was suspended from service on a charge that he was found carrying in the lorry given to his care 140 mds. of rice for some merchant in the Bazar. He was prosecuted for the said offence under Sec. 409 I. P. C. While the said prosecution was pending, he was discharged from service by the order of the Officer on Special Duty, Manipur State Transport, dated 19-4-1956 on the ground that he was found to be unsuitable for the post. Later, in the criminal prosecution he was acquitted on 13-12-1956 on the ground that no case under Sec. 409 I. P. C. was made out. Then on 24-9-1957, another order was issued by the Officer on Special duty modifying the previous order of discharge dated 19-4-1956 and stating that the petitioner was given a notice of discharge of one month with effect from 19-4-1956 and that he was discharged form service with effect from 18-5-1956. This later order dated 24-9-1957 was as a result of a communication from the Assistant Secretary, Manipur Administration to the Officer on Special Duty on 25-6-1957 stating that as the Driver was a temporary employee it was fair that he was allowed one months notice before discharge. This later order dated 24-9-1957 was as a result of a communication from the Assistant Secretary, Manipur Administration to the Officer on Special Duty on 25-6-1957 stating that as the Driver was a temporary employee it was fair that he was allowed one months notice before discharge. Thus, the petitioner ceased to be a driver on 18-5-1956 after he was placed under suspension from 18-2-1956. 4. He has come forward with this writ application on 5-4-1958 against the said order of discharge dated 24-9-1957. His plea is that he was holding a permanent civil post in the Hydro-Electric Board and that when he was transferred to the Manipur State Transport, he was absorbed as a permanent driver in the said State Transport, that as such he cannot be dismissed or removed from service under Article 311 of the Constitution by an authority subordinate to his appointing authority and further that his removal from service without giving an opportunity to show cause against the action to be taken against him was again in violation of the mandatory provisions of Article 311(2) of the Constitution and hence it must be deemed that he still continued in service and that therefore the order dated 27-9-1957 must be set aside as without jurisdiction. 5. On behalf of the respondents, it was contended that the petitioners, service has been throughout on a temporary basis, that he was never made permanent, that therefore it is the Temporary Service Rules 1949 which would apply to the petitioner and not Article 311 of the Constitution, that he was not dismissed or removed from service by way of punishment, that Article 311 of the Constitution will not therefore apply, that in any case there has been inordinate delay in seeking the extra-ordinary jurisdiction of this Court and that the petitioner was not therefore entitled to any relief. 6. The question arises for decision as to the status of the petitioner in Government service at the time of his discharge on 24-9-1957. A further question arises whether the discharge of the petitioner would amount to dismissal or removal from service as would attract the provisions of Article 311 of the Constitution. 7. I shall take up the question of the status of petitioner first. The petitioner, as I said, was first appointed to a substantive post in the Hydro-Electric Board on probation for a period of 3 months on 1-6-47. 7. I shall take up the question of the status of petitioner first. The petitioner, as I said, was first appointed to a substantive post in the Hydro-Electric Board on probation for a period of 3 months on 1-6-47. This is clear from Annexure-A/8, his service register. At that time, Manipur was a princely State. It became a Part "C" State in the Indian Union on 26-1-1950. As pointed out in Rajvi Amar Singh v. State of Rajasthan, AIR 1958 SC 228 , when one State is absorbed into another, whether by way of accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State and are taken on by it, serve on such terms and conditions as the new State may choose to impose. Thus the petitioner cannot claim his appointment to a substantive post as a probationer in the Hydro-Electric Board of the old Manipur princely State after the integration of the said State into India. But he continued in the Hydro-Electric Board as driver after 26-1-1950. It was on 1-5-1950 that by the order of the Chief Commissioner, the petitioner was absorbed by transfer into the Manipur State Transport Department (Annexure-A/1). The order itself does not show whether he was absorbed as a permanent Driver or a temporary driver. But in his Service Book (annexure-A/8) he is entered as a temporary servant. We may therefore take it that his service from 1-5-1950 on the scale of pay of Rs. 45-3-75/- was temporary service, as it is now shown that there was no substantive post available for him then in the Manipur State Transport Department. We, however, find from Annexure-A/7 that on 26-12-1951, the President sanctioned the creation of 30 Drivers in the Manipur State Transport on the scale of pay of Rs. 50-3-80/-. These are substantive posts. 8. By that time, the Development and Revenue Commissioner and Ex-Officio Secretary of the Government of Manipur had been made the appointing authority of the Drivers in the said Department. On 9-4-1952, the said appointing authority passed an order appointing the petitioner as a Driver in the Manipur State Transport with effect from 26-12-1951, which was the date of creation of the post by the President. On 9-4-1952, the said appointing authority passed an order appointing the petitioner as a Driver in the Manipur State Transport with effect from 26-12-1951, which was the date of creation of the post by the President. By the same order, namely, Annexure-A/2, it was stated that the petitioner shall be on probation for a period of six months. One fails to understand why a fresh order of appointment was thought necessary for the petitioner on 9-4-1952, when he was continuing without any break in service even from 1-6-1947 and why a period of probation was fixed for a servant who was already serving for five years. No rule of service in the Manipur State Transport requiring such a course have been brought to my notice. Perhaps, it was felt that when the petitioner was being absorbed in a substantive vacancy, the formalities had to be gone through. 9. Thus the petitioner was appointed to a substantive post on probation for a period of six months with effect from 26-5-1951 by the then appointing authority, the Development and Revenue Commissioner and Ex-Officio Secretary of the Government of Manipur. I find from his Service Book that the fact of such appointment on probation for six months in a substantive post has not been entered therein. In column 1, the order number is mentioned and in column 4, the scale of pay and in column 5 the date of appointment are filled up. Column 2 which is intended to show whether the appointment was substantive or acting and whether permanent or temporary is left blank. So also column 3 which is to state the substantive appointment if he was acting has also been left blank. Thus the Service Book by itself is not of much help to show his status in the Government service. But I have pointed out that he was appointed to a substantive vacancy and that he would not have been placed on probation if it was intended to appoint him as a mere temporary servant. 10. It is not the case of the respondent that the petitioner had to pass any tests in the course of his probation. Nor has it been alleged that during the probation of six months from 26-12-1951 the service of the petitioner was in any way unsatisfactory. 10. It is not the case of the respondent that the petitioner had to pass any tests in the course of his probation. Nor has it been alleged that during the probation of six months from 26-12-1951 the service of the petitioner was in any way unsatisfactory. At the end of the probation period of six months, namely on 26-6-1952, if his work was found satisfactory, orders ought to have been passed as to whether he had satisfactorily completed his probation. The normal procedure if he did not satisfactorily complete his probation was either to discharge him from service at the end of the period of probation or if the Government thought that he should be given a further trial, then to extend his probation by whatever period the Government thought fit. But no order of any kind was passed. The petitioner was simply allowed to continue in service in the substantive post. We have to take it therefore that the Government found his service to be satisfactory. Otherwise, as I said, they would have discharged him or passed an order extending his probation for a further period. If his service was found satisfactory at the end of the probation, the proper thing to do would be to confirm him in the post in which case he would become a permanent Government servant. But no such order was also passed. 11. The position was thus left somewhat vague as to the status of the petitioner after 26-6-1952. But the petitioner was allowed to continue in service and increments were granted to him with effect from the date of his first appointment by the Chief Commissioner on 1-5-1950. Thus by 1-5-1955, he had drawn 5 increments of Rs. 3/-each making his pay Rs. 65/- on the scale of Rs. 50-3-80/-. It was in this situation that he was first suspended for misconduct with effect from 18-2-1956 by the order of the Officer on Special Duty, Manipur State Transport dated 22-2-1956 (Document No. 4), and later discharged from service with effect from 18-2-1956 on the ground that he was found to be unsuitable for the post by order dated 19-4-56 (Document No. 5 and Annexure-A/3). Later, this order of discharge dated 19-4-1956 was modified by a notice dated 24-9-57 giving notice of one month with effect from 19-4-1956 and further stating that he was discharged from service with effect from 18-5-56 (Document No. 7. and Annexure-A/5). 12. It has further to be mentioned that in Document No. 4, the order of suspension, the petitioner was not referred to as a temporary servant and the order of suspension was to continue till the disposal of the Police case against him. As far as we know, there is no question of suspension for a temporary servant whose services are intended to be terminated. Suspension is a procedure prescribed in C. C. S. (C and A) rules, when it is decided to take disciplinary action against a servant and when it is felt by the Disciplinary authority that pending the enquiry, he should not be allowed to work. It was in Document No. 5, the order dated 19-4-56 of the Officer on Special Duty that the petitioner was for the first time called a temporary driver. In modifying the order in Document No. 5 by the subsequent order document No. 7 dated 24-9-1957, the petitioner has again been treated as a temporary driver and one months notice of discharge was considered as sufficient for him on that basis. 13. The question now is whether the petitioner can be called a temporary servant on the facts stated above. When a person is appointed on probation to a substantive post, it cannot be said that he was appointed temporarily either for an indefinite period or for a specific period. During the period of his probation in such a substantive post, the Government can, no doubt, discharge him from service and Article 311 of the Constitution will not apply to such Appellant discharge. This has been pointed out by the Supreme Court in the well-known Dhingras case, (Parshotam Lal Dhingra v. Union of India), in AIR 1958 S.C. 36 . But when once the probation period is over as in this case and the Government servant continues to be employed in the substantive post without any order of confirmation, it cannot be said that he is merely a temporary Government servant. But when once the probation period is over as in this case and the Government servant continues to be employed in the substantive post without any order of confirmation, it cannot be said that he is merely a temporary Government servant. When the period of probation is over and he is not discharged at the end of the probation period and is allowed to continue in the substantive post without his probation being extended, he gets substantively appointed to the post and he acquired a right to hold the post. 14. It was however argued by the learned Government Advocate that in such a case the Government servant would continue only as a probationer until on satisfactory completion of his probation an order of confirmation was passed by the Government. According to him, it was only when such an order of confirmation was passed that the probationer would become substantively appointed to the permanent post. I must say that this was a new case set up at the time of arguments. The Respondents case all along was the petitioner was a temporary servant and his services were terminated on that basis. If he was treated as a probationer, he could have been discharged from service during the period of probation. The documents discussed earlier show that he was not treated as a probationer, but only as a temporary servant. The respondent was evidently changing his stand when he found that he could not substantiate his case of temporary service. 15. In support of the new plea, the Government Advocate drew my attention to the decision in Naresh Chandra Gangopadhyay v. Director of Fishery, Government of West Bengal, AIR 1959 Cal 100 in which it was held that a civil servant who is continued in service after the expiry of his probationary period without being confirmed cannot claim a status other than that of a probationer. On the strength of that decision, he argued that the petitioner continued only as a probationer even after the period of probation was over, as no order confirming him was passed. I have perused that decision with great care. But in that decision the probationer had to pass certain departmental examinations during the probationary period before he could be confirmed and he had not passed the said examinations. In other words, he had not satisfactorily completed his probation. I have perused that decision with great care. But in that decision the probationer had to pass certain departmental examinations during the probationary period before he could be confirmed and he had not passed the said examinations. In other words, he had not satisfactorily completed his probation. The Government could have discharged him from service. But they allowed him to continue, which only meant that his probation period was extended to give him an opportunity to complete it satisfactorily. 16. But that is not the case with the present petitioner. He did not have to pass any test or examination. As I already pointed out, he has been a driver even from 1-6-1947 and his probation was started from 26-12-1951, i.e. more than 4 years after he had continuously been in service. The order of probation itself was passed only on 9-4-1952 to take effect from 26-12-1951. Even after 26-6-52 when his period of probation expired he was working for more than 3½ years before he was placed under suspension on 18-2-1956. In those circumstances, it is not possible to treat him as a probationer in 1956, nearly 9 years after his services began. 17. After all, the order of confirmation had to be passed by Government and if they intentionally or by omission failed to pass such an order, it cannot affect the status of the Government servant concerned. If it was the intention of the Government that in spite of a Government servant appointed on probation in a substantive vacancy completing his period of probation and continuing in the post was to have no lien on the post and was to continue only as a probationer, it was the duty of the Government to inform the person concerned that their intention was to treat him only as a probationer so that if the servant was not satisfied with the status given to him he has an opportunity to secure other services where he could have better security of tenure. I may also say that it is not alleged in the counter-statement of the respondent that the Government deliberately decided to continue him as a probationer without any lien on the post. 18. The real truth appears to be that it was an omission on the part of the Manipur State Transport to pass the formal order of confirmation. I may also say that it is not alleged in the counter-statement of the respondent that the Government deliberately decided to continue him as a probationer without any lien on the post. 18. The real truth appears to be that it was an omission on the part of the Manipur State Transport to pass the formal order of confirmation. I have already stated that the Service Book of the petitioner was not filled up properly and that the columns relating to the status of the petitioner were left blank. Just as that was an omission on the part of the Respondent, the failure to pass the order of confirmation even when such a long time had passed after the period of probation was over was equally an omission. If it was not an omission, then it must have been done intentionally in which case, I expect the respondent to show some record that the Department deliberately desisted from confirming the petitioner. But, in the present case, it is clear that there was no such intention, as the petitioner was allowed to draw his increments even from 1-5-1950. Normally, a probationer will not be allowed to draw an increment unless he has completed his probation satisfactorily. 19. I do not think that the Calcutta decision cited above goes to the length of showing that in cases where there has been failure on the part of the appointing authority to pass the order of confirmation after a person has completed his period of probation he should continue to be treated as a probationer without any lien on the post. In the present case, the petitioner, as I said, has been continuously in service in the substantive post for 3½ years after the period of probation was over. We can very well think of a case where the person is thus continued in service without any order of confirmation, say for 10 or 15 years. Can it be said that even after long service in a substantive vacancy after the period probation was over that he was only a probationer at the mercy of the employer. I am sure that such a proposition cannot be accepted. No rules of service in the Manipur State Transport Department have been brought to my notice which would uphold such a view. I am sure that such a proposition cannot be accepted. No rules of service in the Manipur State Transport Department have been brought to my notice which would uphold such a view. When a probationer appointed in a substantive post thus continues in service after the period of probation was over drawing his regular increments in the said service, it means that he acquires a lien on the said post unless the employer has declared his intention that he is not to have such a lien. Otherwise it will seriously affect the security of tenure of an employee. In other words, as stated in para 26 of Dhingras case, AIR 1958 SC 36 the person concerned acquires a right to hold the post until the termination of his service either by attainment of the age of superannuation or by compulsory retirement or by dismissal or removal by way of punishment. It follows therefore that Article 311 of the Constitution will apply to such service and he is entitled to the protection thereof. Hence I cannot accept the contention of the respondent that the petitioner was either a temporary servant or a mere probationer without any lien on the substantive post of driver. 20. The next question is whether the petitioners service was legally terminated. It follows from what I have stated above that the petitioners service cannot be terminated as in the case of a temporary servant or of a probationer. The order dated 24-9-57 terminating his service on one months notice cannot be accepted as a proper order in his case. Though it is not stated in the said order that his service was being terminated for misconduct, we know as a matter of fact that he was dismissed as a punishment. He was first suspended from service by order dated 22-2-56 on the ground that he dishonestly entered into a conspiracy with a merchant in the Bazar and carried 140 maunds of rice in the truck belonging to the Manipur State Transport. The next order dated 19-4-56 referred to the earlier order suspending him for misconduct and he was discharged from service as he was found unsuitable for the post. It is again clear from this that he was being dismissed for misconduct. The subsequent order dated 24-9-1957 is again based on the earlier order dated 19-4-1956. The next order dated 19-4-56 referred to the earlier order suspending him for misconduct and he was discharged from service as he was found unsuitable for the post. It is again clear from this that he was being dismissed for misconduct. The subsequent order dated 24-9-1957 is again based on the earlier order dated 19-4-1956. Thus it is clear that the petitioner was not being merely discharged as a temporary servant, but that he was being punished for misconduct. The mere use of the word discharge" in the order complained against will not make it any the less a punishment. By such discharge, he has lost his lien on a substantive post and hence it entailed penal consequences for him. It may also be mentioned here that he was criminally prosecuted in C.I.R. Case No. 106 of 1956 in the Court of the First Class Magistrate, Manipur, under section 409 I.P.C. and he was acquitted on 13-12-1956 (document No. 6). It was after such acquittal by the Magistrates Court that he again moved the Government by way of a petition to cancel the order of the Officer on Special Duty, dated 19-4-1958 and the order complained against dated 24-9-1957 happened to be passed practically rejecting his petition except and to the extent that he was given one months notice. There is no doubt therefore that Article 311 applied to the petitioner and he ought to have been given an opportunity to show cause against the action proposed to be taken against him. As that was not done, the order dated 24-9-1957 has to be treated as illegal and unconstitutional and against the express provisions of Article 311 (2) and it has to be set aside. 21. The order is also void under Article 311(1). The petitioner was appointed to the post by the Development and Revenue Commissioner and Ex-Officio Secretary to the Government of Manipur by his order dated 9-4-1952. The order discharging him from service which, I have held amounted to dismissal was passed by one S. K. Dass, Officer on Special Duty on 24-9-1957. The order is also void under Article 311(1). The petitioner was appointed to the post by the Development and Revenue Commissioner and Ex-Officio Secretary to the Government of Manipur by his order dated 9-4-1952. The order discharging him from service which, I have held amounted to dismissal was passed by one S. K. Dass, Officer on Special Duty on 24-9-1957. The contention of the respondent is that by the time the said order was passed the power of appointment of drivers of the Manipur State Transport had been delegated to the Officer on Special Duty, Manipur State Transport from the Development and Revenue Commissioner and hence as the appointing authority he had also the power of discharging, dismissing and removing such drivers. But what Article 311(1) provides is that no public servant shall be dismissed or removed from service by an authority subordinate to that by which he was appointed. It is not denied that the Officer on Special Duty is subordinate to the Development and Revenue Commissioner and Ex-Officio Secretary of the Government of Manipur. In any case, the petitioner was first appointed by the Chief Commissioner himself by his order dated 15-5-1950 and all that Development and Revenue Commissioner did by his order dated 9-4-1952 was to regularise the said service after the orders of the President of India creating the said post was received on 26-12-51. Hence the petitioner having been entertained in service by the Chief Commissioner, the Officer on Special Duty, who was admittedly subordinate to the Chief Commissioner cannot pass an order of discharge amounting to the dismissal of the petitioner. Thus the said order dated 24-9-1957 is also void under Article 311 (1) of the Constitution. 22. It was finally urged that there has been serious delay on the part of the petitioner in coming forward with this writ application and hence the discretionary power under Article 226 of the Constitution should not be used by this Court. I am however unable to see any such delay in this case. The order complained against was passed only on 24-9-57. The petitioner then applied to the Officer on Special Duty for supply of copies of the orders passed against him and of other documents. For this, a reply was sent only on 30-11-57 stating that the petitioner may inspect the documents and take extracts from the official records on 2-12-57 (document No. 1). The petitioner then applied to the Officer on Special Duty for supply of copies of the orders passed against him and of other documents. For this, a reply was sent only on 30-11-57 stating that the petitioner may inspect the documents and take extracts from the official records on 2-12-57 (document No. 1). The present petition was filed on 5-4-1958, evidently after he inspected the documents and took copies and consulted his lawyer. I am unable to see therefore any delay in coming forward with this petition. 23. For reasons stated above, the petition is allowed and a writ will issue against the respondent quashing his order dated 24-9-1957. Respondent will pay the costs of the petitioner in this application. Advocates fee Rs. 100/-. Petition allowed.