PATHAK, J.: This petition under Arti­cle 226 of the Constitution of India has been filed by the petitioner against the notice of termination of his ser­vices dated 31-1-68 issued by P. A. to the Chief Engineer, N. F. Railway, Maligaon. 2. The petitioner's case is that he got his Diploma in Civil Engineering from the University of Roorkee in the year "1958 obtaining First Class. Thereafter he was appointed in 1959 as a Drafts­man in the N. F. Railway under the Chief Engineer and was posted at Mali­gaon. He was selected for this job by the Chief Engineer, N. F. Railway and this was subsequently approved by the N. F. Railway Recruiting Committee. The petitioner worked in that capacity for 3 1/2 years and in the year 1962 when a vacancy for Senior Draftsman occurred, the authority issued an advertisement in the press for filling up the said vacancy. The notice that was issued by the autho­rity for this post has been quoted in Annexure 'A' to the petition, which runs as follows: "NORTH-EAST FRONTIER RAILWAY EMPLOYMENT NOTICE NO. 1/62 CATEGORY No. 7 : One (1) post of Senior Draftsman (Civil). Post temporary but likely to be made permanent. Scale of pay: Rs. 335-15-485 plus usual allow­ances as per rules. Minimum Qualification : A Degree in Civil Engineering or L. C. E. with 3 years practical experience in Civil Engineering designs. Age limit : Between 20 and 30 years." 2. In response to the said advertise­ment, the petitioner submitted an application and he was selected by the N. F. Railway Recruiting Committee and he occupied the first place amongst the competing candidates. Thereafter, an ap­pointment letter was issued and the petitioner was temporarily posted to offi­ciate as Senior Draftsman under the Deputy Chief Engineer, Workshop, N. F. Railway, Pandu. The posting and trans­fer order passed by the Chief Engineer (P) dated 18-12-1962 is as follows: "N. F. Railway Following posting and transfer are ordered with immediate effect: X X X 2. Shri S. Mehra, Draftsman in scale 205-280 (A) who has been approved for the post of Sr. Draftsman in grade Rupees 335-485 by the N. F. Railway Recruit­ment Committee and offered appointment as such under SPO (R)'s No. E/227/III/64 Pt. I (Rect) dated 16-11-62, is appointed against a regular vacancy of Sr. D/man 9f CE's office in grade Rs. 335-485 and is temporarily posted under Dy. Draftsman in grade Rupees 335-485 by the N. F. Railway Recruit­ment Committee and offered appointment as such under SPO (R)'s No. E/227/III/64 Pt. I (Rect) dated 16-11-62, is appointed against a regular vacancy of Sr. D/man 9f CE's office in grade Rs. 335-485 and is temporarily posted under Dy. S. E. (WS) BNGN at PNO vice Shri R. N. Adhya." Thereafter the following office order dated 18-12-62 has been passed which has been annexed as Annexure 'C' to the petition: "In terms of CE/P/PNO's office order No. E/41/III/38/IIKE) dt. 18-12-62 Shri S. L. Mehra D/man in scale of Rupees 205-280/- (A) who has been approved for the post of Sr. D/man in grade Rupees 335-485 (A) by the N. F. Railway Recruitment Committee and offered appoint­ment as such under SPO/Rs No. E227/ HI/64 PL. I (Rect) dt. 16-11-62, is here­by temporarily posted to officiate as Sr. D/man in scale Rs. S35-485/- (As) in this office with effect from 18-12-62 (A. N.) against the existing vacancy vice Shri R. N. Adhya Sr. D/man in scale 335-485/-who is being spared from this office on 18-12-62 (A. N. to report to CE's draw­ing office)" The petitioner worked in the said capa­city from 18-12-62 till 31-1-68 when he was reverted to the post of lower cate­gory, namely Junior Grade Draftsman in which capacity he was made to work for a period of one month. On 31-1-68 a notice was served on him by the P. A. to the Chief Engineer, N. F. Railway, Maligaon terminating his services with one month's notice with effect from 31-1-68 on the expiry of which the peti­tioner's service in the Railway would terminate on 1-3-68. By that notice, however, the petitioner was given an alternative appointment as a Trainee Assistant Station Master. The petitioner has come against this notice dated 31-1-68 terminating his services as Senior Draftsman. 3. The learned counsel for the peti­tioner has submitted that the petitioner was appointed against a regular vacancy of Senior Draftsman of Chief Engineer's office in grade Rs. 335-485 and he was temporarily posted under the Deputy Chief Engineer (Workshop), Bongaigaon at Pandu. The petitioner has come against this notice dated 31-1-68 terminating his services as Senior Draftsman. 3. The learned counsel for the peti­tioner has submitted that the petitioner was appointed against a regular vacancy of Senior Draftsman of Chief Engineer's office in grade Rs. 335-485 and he was temporarily posted under the Deputy Chief Engineer (Workshop), Bongaigaon at Pandu. He has further submitted that the petitioner was appointed in the said post as probationer for one year with effect from the date of his appointment namely 18-12-1962 and he worked there for more than five years and therefore he must be deemed to have been made permanent on the completion of his pro­bationary period and as such the order of termination of his services is illegal. The learned counsel has submitted that the termination order was passed and issued by P. A. to the Chief Engineer, who was not the appointing authority of the petitioner and on that ground also the termination order was bad. 4. Mr. Barooah, the learned counsel appearing on behalf of the Opposite Par­ties, has submitted that the post to which the petitioner was appointed was a tem­porary one and he was only a proba­tioner but he was not confirmed in the said post and as such he has no right to the post and he cannot question the order of termination of his services as irregular and bad in law. 5. From annexure I to the affidavit in opposition filed on behalf of the Rail­way Department, it is found that the petitioner was offered a temporary ap­pointment as Senior Draftsman on Rs. 335/- in grade Rs. 335-48S/- plus usual allowances as admissible from time to time on certain conditions, of which condi­tions 2, 3 and 4 are as follows: "2. All appointments will be made on probation for one year. For students or apprentices appointed to a working post after completion of their training, the probationary period commences from the date of such appointment. 3. 335-48S/- plus usual allowances as admissible from time to time on certain conditions, of which condi­tions 2, 3 and 4 are as follows: "2. All appointments will be made on probation for one year. For students or apprentices appointed to a working post after completion of their training, the probationary period commences from the date of such appointment. 3. It must be clearly understood that the appointment is terminable on 14 days' notice on either side except that no such notice is required if the termi­nation of service due to the expiry of the sanction to the post you will hold or on return to duty of the absentee in whose place you may be engaged in which case your service will be automa­tically terminable from the date of ex­piry of the sanction or from the date the former resumes his duty, as the case may be. Also no such notice will be required if the termination of your ser­vice is due to your mental or physical incapacity or to your removal or dismis­sal as a disciplinary measure after com­pliance with the provisions of Clause II of Article 311 of the Constitution of India. 4. You will not be eligible for any pension or any benefit under the State Railway Provident Fund or Gratuity Rules or to any absentee allowance be­yond those admissible to temporary em­ployees under the rules in force from time to time during such temporary ser­vice." On a consideration of the advertisement to the post and the conditions under which the petitioner was appointed, it is quite clear that the post of senior Draftsman to which the petitioner was appointed was a temporary post and the petitioner's appointment was also tem­porary. The petitioner's services .have not been terminated by way of any puni­shment and as such it does not amount to an order of dismissal, removal or reduction in rank. The impugned notice,, by which the petitioner's services have been terminated, states that consequent on reduction of establishment and aboli­tion of certain temporary/work-charged posts of Senior Draftsman and Drafts­man in open line, the petitioner had been rendered surplus to the requirement of" the Railway and therefore he was given one month's notice, on the expiry of which the petitioner's services were ter­minated. This notice of termination of the petitioner's service appears to be quite in conformity with the conditions of service of appointment as is found in the notice No. E/227/III/64 Pt. I (Rect) dated 16-11-1962 addressed to the peti­tioner by the Chief Personnel Officer, N. F. Railway, Pandu, which is annexure I to the affidavit-in-opposition. 6. The learned counsel for the peti­tioner further submitted that the petitioner was appointed against a regular vacancy of Senior Draftsman and he was--appointed as a probationer for one year and that under Rule 2202 (13), of the Indian Railway Establishment Code, Volume II, a probationer means a rail­way servant employed on probation in= or against a substantive vacancy in the cadre of a department and therefore the petitioner must be deemed to have been confirmed in his post after the expiry of his one year's period of probation and? as such his services could not be termi­nated in the manner in which it has been done. In this connection, Mr. Barooah, the learned counsel for the Opposite Parties, has drawn our attention to the decision; in Parshotam Lai Dhingra v. Union of India, AIR 1958 SC 36 , wherein the fol­lowing passage occurs at page 42: "The position may, therefore, be sum­marised as follows : In the absence of any special contract the substantive ap­pointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains,, the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service can­not be terminated except by way of punishment for misconduct, negligence,, inefficiency or any other disqualification? found against him on proper enquiry-after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure arid his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure arid his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an offi­ciating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service." In paragraph 25 of the said decision, it is laid down by the Supreme Court as follows: "It follows, therefore, that if the termi­nation of service is sought to be brought about otherwise than by way of puni­shment, then the Government servant whose service is so terminated cannot claim the protection of Article 311 (2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided." Relying on these passages, Mr. Barooah has submitted that even if the petitioner was on probation he was not confirmed in the post and as such he had no right to hold the post and when his services were terminated, not as measure of puni­shment, Article 311 (2) is not attracted. Mr. Barooah has also referred to the decision in Ranendra Chandra v. Union of India, AIR 1963 SC 1552 , wherein it has been held that a government servant who is on probation can be discharged during the period of probation and such discharge would not amount to dismissal or removal within the meaning of Arti­cle 311 (2) and would not attract the protection of that Article where the ser­vices of a probationer are terminated in accordance with the rules and not by way of punishment. A probationer has no right to the post held by him and under the terms of his appointment he is liable to be discharged at any time during the period of his probation sub­ject to the rules governing such cases. 7. A probationer has no right to the post held by him and under the terms of his appointment he is liable to be discharged at any time during the period of his probation sub­ject to the rules governing such cases. 7. So the point that falls for deter­mination in the instant case is whether the petitioner was on probation in or against a substantive post; if so, whe­ther he completed the period of proba­tion required under the Rules and whe­ther he can be deemed to have been con­firmed in the post. The settled law is that the services of a probationer un­less he is confirmed in the post are ter­minable in accordance with the Rules .and not by way of punishment. Mr. Barthakur, the learned counsel for the petitioner has submitted that the peti­tioner who served the probationary period of one year in the instant case and was serving in the same post for 5 years or more should be deemed to have been confirmed in the post conferring on him the right to hold the post and in this connection, the learned counsel has referred to the decision in Director of Public Instructions v. Dev Raj, reported in 1968-17 FLR 9 :( AIR 1968 SC 1210 ) wherein it has been held to the follow­ing effect: "Where the service rules fix a cer­tain period of time beyond which the probationary period cannot be extend­ed, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an ex­press order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case it is permissible to draw the in­ference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication." The Rules which governed the case before the Supreme Court provide specifically that the total period of probation includ­ing extensions if any shall, not exceed three years. But in the rules govern­ing the case before us there is no such rule laying down the maximum period of probation. But in the rules govern­ing the case before us there is no such rule laying down the maximum period of probation. Moreover the case before the Supreme Court related to a perma­nent post whereas the post held by the petitioner in the instant case is a tempo­rary one. In the circumstances, I hold that the decision of the Supreme Court referred to above is distinguishable on facts and the law laid down therein is not applicable to the facts of the case before us. 8. In the instant case, the petitioner has not claimed that his service ripened into a quasi-permanent service. I have found that the post which the petitioner held was temporary. Though he was put on probation for one year, the post it­self was temporary and he was appoint­ed temporarily to the said post on the specific condition that his appointment was terminable on 14 days' notice. Though the petitioner was appointed against a regular vacancy, there is no doubt that the post to which he was ap­pointed was temporary and his appoint­ment was also temporary. Merely because the petitioner was appointed against a regular vacancy, and put on probation for one year, that would not make the post itself permanent or his appointment to it permanent. It has been laid down by the Supreme Court in the case of AIR 1958 SC 36 , referred to above, that there may be substantive appointment to a temporary post, but that would not give the Government servant so appoint­ed any right to hold the post. In view of the facts and circumstances of the case and the Rules governing the same, though the petitioner completed his pro­bationary period and was serving in the said temporary post beyond the period of probation, it cannot be inferred by Implication that he was confirmed in a substantive post and he acquired the right to hold the post. I therefore hold that the provisions of Article 311 (2) of the Constitution are not attracted to the instant case. 9. The next point for consideration is whether the issue of the impugned notice of termination of services of the peti­tioner by P. A. to the Chief Engineer was valid in law. 10. I therefore hold that the provisions of Article 311 (2) of the Constitution are not attracted to the instant case. 9. The next point for consideration is whether the issue of the impugned notice of termination of services of the peti­tioner by P. A. to the Chief Engineer was valid in law. 10. Paragraph four of the affidavit in opposition filed by the Railway adminis­tration is as follows: "That with reference to the statements of paragraph 5 of the petition I say that the appointment of the petitioner to the post of the Senior Draftsman on 16-12-62 was purely on temporary basis and the post itself was temporary. Due to contraction of the construction projects and abolition of a number of temporary posts in the regular cadre as well as against sanctioned estimates, five Drafts­men including the petitioner in Scale of Rs. 335-485 were rendered surplus to the requirement of Senior Draftsman and as the petitioner who has been hold­ing pro forma position in the category of Draftsman in scale of Rs. 205-380/-, so the petitioner and the four other persons were reverted to their former position of Draftsman. The petitioner joined in the post of Draftsman to which he was reverted. Again it was found that in the category of Draftsman in scale of Rs. 205-380/- the petitioner became sur­plus according to his seniority position. The N. F. Railway Administration by Its letter dated 31st January 1968 issu­ed notice of termination of service of the petitioner by one month's notice with effect from 31-1-1968 and by the same letter the Railway authority out of sympathy to the petitioner offered an alternative appointment of Trainee Assis­tant Station Master as no other suita­ble post in the technical category could be found out for him." 11. From the above statement, it ap­pears that the petitioner has not been dismissed or removed by way of punish­ment. According to the terms of his ap­pointment, the appointment of the peti­tioner was terminable on 14 days' notice on either side and that no such notice was required if the termination of ser­vice was due to the expiry of the sanction to the post. The termination of services of the petitioner was in conse­quence of the reduction of establishment and abolition of certain post of Senior Draftsman, which meant that sanction for certain temporary posts of senior Draftsman and Draftsman expired. The termination of services of the petitioner was in conse­quence of the reduction of establishment and abolition of certain post of Senior Draftsman, which meant that sanction for certain temporary posts of senior Draftsman and Draftsman expired. That being the position, the services of the petitioner were terminable under the terms and conditions of his appointment. The notice which was issued on 31-1-1968 regarding the termination of the service of the petitioner has been issu­ed by the Railway Administration and the same has been communicated by the P. A. to the Chief Engineer. In the circumstances, the notice can­not be said to be bad because it was issued by the P. A. to the Chief Engin­eer. By the notice dated 31-1-68 issu­ed by the P. A. to the Chief Engineer, the petitioner was informed that his ser­vices will terminate on 1-3-1968 due to the reasons stated therein and he was offered an alternative appointment as a Trainee Assistant Station Master. The petitioner submitted a representation against this notice, wherein it is found from the record submitted in this Court by letter No. 197-E/1314(E) Maligaon dated 24-2-68, the petitioner was inform­ed that the Chief Engineer carefully con­sidered his representation and decided that the petitioner had no claim for absorption in the category of Junior Design Assistant and as such he had to accept the alternative appointment that had been offered to him and the peti­tioner also was therefore asked to com­municate his acceptance of the offer of alternative appointment as Assistant Sta­tion Master; otherwise his service would terminate with effect from 1-3-1968. So this decision as it appears was taken by the Chief Engineer and it was only com­municated by the P. A. to the Chief Engineer. In the circumstances, I hold that this petition has no substance. 12. In the result, the petition is dis­missed and the Rule is discharged. I. however, make no order as to costs. Civil Rule No. 46/68. 13. DUTTA, C.J.: I have had the op­portunity of going through the judgment of my learned brother Pathak, J. I regret that I cannot agree with his views and conclusion reached. The facts of the case have been elaborately stated by him and I need not repeat the same. 14. Civil Rule No. 46/68. 13. DUTTA, C.J.: I have had the op­portunity of going through the judgment of my learned brother Pathak, J. I regret that I cannot agree with his views and conclusion reached. The facts of the case have been elaborately stated by him and I need not repeat the same. 14. The petitioner has come before us against a notice served on him on 31-1-68 by the P. A. to the Chief Engineer, N. F. Railway, Maligaon terminating his service with one month's notice with effect from the above date. His contention is that the said notice is in viola­tion of Article 311 of the Constitution as he was removed from service without any observance of the provisions of the above Article. It is conceded that the petitioner was appointed as a proba­tioner in the post of Senior Draftsman. The contentions on behalf of the Rail­ways are two-fold, namely, (1) that the post to which the petitioner was appoint­ed was temporary; and (2) that although he was a probationer, he was never con­firmed; and therefore Article 311 need not be followed for his removal. 15. As regards the first question, it may be noted that the posting and trans­fer order passed by the Chief Engineer (P) dated 18-12-62 is as follows: "N. F. Railway. Following posting and transfer are order­ed with immediate effect: X X X 2. Shri S. Mehra, Draftsman in scale 205-280 (A) who has been approved for the post of Sr. Draftsman in grade Rupees 335-485 by the N. F. Railway Recruit­ment Committee and offered appointment as such under SPO (R)'s No. E/227/III/64 Pt. I (Rect) dated 16-11-62, is appoint­ed against a regular vacancy of Sr. D/man of CE's office in grade Rupees 335-485 and is temporarily posted under Dy. S. E. (WS) BNGN at'PNO vice Shri R. N. Adhya." 16. The above order will show that the petitioner was appointed "against a regular vacancy". Moreover a person cannot be appointed as a probationer in a temporary post. The term "proba­tioner" has been defined in Rule 2202 (IS) in the Indian Railway Establishment Code Vol. II as follows: "Probationer means a railway servant employed on probation in or against a substantive vacancy in the cadre of a De­partment." 17. Moreover a person cannot be appointed as a probationer in a temporary post. The term "proba­tioner" has been defined in Rule 2202 (IS) in the Indian Railway Establishment Code Vol. II as follows: "Probationer means a railway servant employed on probation in or against a substantive vacancy in the cadre of a De­partment." 17. When it has been conceded that the petitioner was appointed as proba­tioner, 1 do not think that there is any substance in the argument that he was appointed to a temporary post. 18. As regards the question of con­firmation, it was held by the Supreme Court in the case between the Director of Public Instructions, Punjab and Dev Raj, reported in 1968-17 FLR 9 :( AIR 1968 SC 1210 ) that where the ser­vice rules fixed a certain period of time beyond which the probationary period could not be extended, and an employee appointed or promoted to a post on probation was allowed to continue in that post after completion of the maximum period of probation with­out an express order of confirmation, he could not be deemed to continue in that post as a probationer by implication. 19. Rule 4 of the Indian Railway Establishment Manual fixes the period of probation as follows: "All appointments will be made on probation for one year. For students or apprentices appointed to a working post after the conclusion of their training the probationary period commences from the date of such appointment." It is true that it is not specifically said in the above rule that the period of pro­bation cannot be extended. But there is no rule for extending the said period. l! think in the absence of a rule giving the power to extend the period of pro­bation, the period fixed by the above rule cannot be extended. The petitioner continued in the post for five years. In view of the above rule, I am of the opin­ion that although no order of confirma­tion was passed, he became confirmed automatically on the expiry of the period fixed by the rule. This period could not be extended by the railway authorities. 20. In the result, therefore, it is held that the petitioner was removed from his service in contravention of Article 311 of the Constitution. The petition is allow­ed. The petitioner will get his cost. The hearing fee is fixed at Rs. 100/-. 21. This period could not be extended by the railway authorities. 20. In the result, therefore, it is held that the petitioner was removed from his service in contravention of Article 311 of the Constitution. The petition is allow­ed. The petitioner will get his cost. The hearing fee is fixed at Rs. 100/-. 21. K. C. SEN J.: The writ application was heard by a Division Bench of this Court; but there being difference of opi­nion, it has been referred to me for my, opinion. 22. The facts of the case have been dealt with by the Hon'ble Chief Justice and the Hon'ble Mr. Justice Pathak in their respective judgments and they need not be fully reiterated here. I shall only, refer to the salient facts which are abso­lutely necessary for the purpose of my decision. 23. It appears that the petitioner; Shankar Lai Mehra was appointed as a Draftsman in the N. F. Railway under, the Chief Engineer and was posted at Maligaon. The petitioner worked in that capacity for 3 1/2 years and in the yean 1962, when a vacancy for Senior Drafts­man occurred, advertisement was issu­ed for filling up such vacancy. In res­ponse to the advertisement, the petitioner, submitted an application and he was selected by the N. F. Railway Recruit­ing Committee and he occupied the first place amongst the competing candidates. Thereafter an appointment letter was issued on 18-12-62, the terms whereof will be discussed later on. Such an ap­pointment letter was followed by two office orders. The petitioner worked in the capacity as a Senior Draftsman from 18-12-62 to 31-12-67 when he was revert­ed to a lower category, namely, Junior Grade Draftsman, in which post he was made to work for period of one month. On 31-1-68, a notice was served upon him terminating his services with effect from 1-3-68. Under this notice, an alter­native appointment of a Trainee-Assistant-Station-Master was offered to him. The petitioner has challenged the order; of the appropriate authority and has asked for a writ of mandamus calling up­on the Opposite Parties for not giving effect to the impugned order dated 31-H-68 terminating the services of the peti­tioner as a Senior Draftsman. He has also prayed for such a writ upon the res­pondents calling upon them to retain him in his post as Senior Draftsman under the Railway Administration after 1-3-68. 24. In this case, Mr. He has also prayed for such a writ upon the res­pondents calling upon them to retain him in his post as Senior Draftsman under the Railway Administration after 1-3-68. 24. In this case, Mr. Barthakur ap­pearing for the petitioner has argued that the petitioner was appointed as a probationer against a regular vacancy of Senior Draftsman in the office of the Chief Engineer in the grade of Rupees S35-485/- and was posted under the De­puty Chief Engineer (Works), Bongaigaon. He was appointed, according to Mr. Barthakur, in the said post as a pro­bationer for one year with effect from 118-12-62 and he worked there for more than five years and therefore he must be deemed to have been made permanent on the completion of his probationary period. His last submission is that the termina­tion order as passed and issued by the Personal Assistant to the Chief Engineer is invalid as he was not the appointing authority. 25. Mr. Barua appearing for the res­pondents has submitted that the post to which the petitioner was appointed was out and out a temporary one. Al­though in the appointment letter he was described as a probationer, there was no order of confirmation during the period of his service. He served in a purely temporary capacity and as such he had no right to the post and cannot question the order of termination of his service as irregular. He also submits that in such circumstances, the provisions of Article 311 (2) of the Constitution cannot be attracted in aid of the petitioner's case. 26. In order to appreciate the argu­ments, it is first of all necessary as to what were the terms of the advertise­ment which was issued by the Railway authority. The employment notice as given in Annexure 'A' to the petition runs as follows: "Category No. 7: One (1) post of Senior Draftsman (Civil). Post temporary but likely to be made permanent. Scale of pay : Rs. 335-15-485/- plus usual allow­ances as per rules. Minimum Qualification: A degree in Civil Engineering or L. C. E. with three years practical experience in Civil Engineering designs. Age limit: Between 20 and 30 years". It will be important to note that there is a condition in this employment notice that the post was temporary, but was likely to be made permanent. Minimum Qualification: A degree in Civil Engineering or L. C. E. with three years practical experience in Civil Engineering designs. Age limit: Between 20 and 30 years". It will be important to note that there is a condition in this employment notice that the post was temporary, but was likely to be made permanent. In the appointment letter-Annexure T of the Affidavit-in-opposition filed on behalf of the Railway Administration, it appears that it was issued on 16-11-62 to the petitioner stating that the appoint­ment as Senior Draftsman on Rs. 335/-in the grade of Rs. 335-15-485/- plus usual allowances, as admissible under the rules from time to time was temporary. It is important to note that although the appointment was given on a temporary basis, in the second para­graph of the letter it is clearly stated that "All appointments will be made on probation for one year". Further in paragraph 3 also, it is stated that "the appointment is terminable on 14 days' notice on either side except that no such notice is required for the termination of service due to the expiry of the sanction to the post you will hold or on return to duty of the absentee in whose place you may be engaged in which case your service will be automatically terminable from the date of expiry of the sanction or from the date the former resumes his duty, as the case may be." From this appointment letter, it appears quite clear that the petitioner was appointed as a temporary hand and if this document has to be treated as the sheet anchor of the case, the peti­tioner cannot make out any case and say that Article 311 (2) of the Constitu­tion has not been complied with. Al­though the caption of Annexure I shows that the appointment was temporary there is a specific condition that he was made a probationer for one year. This fact requires careful consideration with reference to subsequent orders as to whether since he was appointed as a probationer the other conditions in the said appointment letter should be made ineffective. It has not been stated that the word probationer was used in the said letter loosely. Before dealing with this question I shall refer to the two subsequent orders which were passed after his selection to hold the post of the Senior Draftsman. It has not been stated that the word probationer was used in the said letter loosely. Before dealing with this question I shall refer to the two subsequent orders which were passed after his selection to hold the post of the Senior Draftsman. They are Annexures 'B' and 'C' of the petition which respectively runs as follows:- "Following posting and transfer are ordered with immediate effect. 1. Shri R. N. Adhya, Sr. D/man in Scale 335-485 (A) under Cy. CE/WS/BNG at Pandu is hereby transferred on his same pay and grade and posted in CE/PNO's drawing office against the vacancy caused due to promotion of Shri S. K. Bhatta as CDM/Matric. 2. Shri S. Mehra, D/man in scale 205-280 (A) who has been approved for the post of Sr. D/man in grade Rs. 335--485 by the N. F. Fly. Recruitment Com­mittee and offered appointment as such under SPO (R)'s No. E/227/III/64 Pt. 1 (Rect), dated 16-11-62, is appointed against a regular vacancy of Sr. D/man of CE's office in grade Rs. 335-485 and is temporarily posted under Dy. SE(WS) BNGN at PNO vice Shri R. N. Adhya". "In terms of CE/P/PNO's office order No. E/41/III/38/III (E), dated 18-12-62 Shri S. L. Mehra D/man in the scale of Us. 205-280/-(A) who has been approved .for the post of Sr. D/man in grade -Rs. 335-485/-(A) by the N. F. Railway Recruitment Committee and offered appointment as such under SPO/R's No. E/227/III/64 PL. 1 (Rect), dated 16-11-62, is hereby temporarily posted to officiate as Sr. D/man in scale Pis. 335-485/-(As) in this office with effect from 18-12-62 (A. N.) against the existing vacancy vice Shri R. N. Adhya Sr. D/man in scale 335-4S5/- who is being spared from this office on 18-12-62 (A. N.) to report to CE's drawing office". In the order, Annexure 'C' issued by the Deputy Chief Engineer, it appears that he was temporarily posted to officiate as Senior Draftsman in the scale of Rs. 335-48S/- with effect from 18-12-62 against the existing vacancy caused by the transfer of Shri R. N. Adhya, Senior Draftsman. The Anne­xure 'B' is very significant inasmuch as the petitioner was appointed on being .selected by the Recruitment Committee -and such appointment was made against a regular vacancy of Senior Draftsman of Chief Engineer's office in the grade of Rs. 335-4S5/- 27. The Anne­xure 'B' is very significant inasmuch as the petitioner was appointed on being .selected by the Recruitment Committee -and such appointment was made against a regular vacancy of Senior Draftsman of Chief Engineer's office in the grade of Rs. 335-4S5/- 27. Accordingly the aforesaid orders issued by the appropriate authority with special reference to the fact that he was appointed a probationer for one year "will give rise to the conclusion that his temporary status as a Senior Draftsman was given a go-by and he was deemed to have served against a substantive vacancy. It is significant to note that the letter of appointment was issued on 16-11-62 and after the lapse of one month the aforesaid letters as per Annexures 'B' and 'C' of the petition -were issued on 18-12-62. This is a very significant fact and in the absence of any -document to the contrary it may be presumed that the appointing authority had in its mind in the meantime, to treat the appointment as a substantive one, as otherwise the subsequent orders would not have been issued in terms as treated therein and it is also not inconsistent with the employment notice that the post is temporary but likely to be made per­manent. 28. Rule 2202 Clause 13 of the Esta­blishment Code Volume II Third Reprint provides that probationer means a Railway servant employed on probation in or against a substantive vacancy in the cadre of a department. From this definition it appears quite clear that un­less there is a substantive vacancy, none can be appointed as a probationer. It could not be shown by Mr. Barua with reference to any other rule as to whether this expression can be used in case of temporary appointments. In order to un­derstand the word 'probationer' reference may also be made to the said Volume of the Establishment Code at Rule 2003 (6). It provides that 'duty' includes ser­vice as a probationer or apprentice pro­vided such service is followed by confir­mation. It will not be forgotten as ap­pearing from Annexure 'B' of the peti­tion that the petitioner was appointed against a regular vacancy and he was temporarily posted under the Deputy CE (WS) .BNGN vice R. N. Adhya, who, it appears from this document, was trans­ferred vice S. K. Bhatta against the vacancy caused by him on account of his promotion. It will not be forgotten as ap­pearing from Annexure 'B' of the peti­tion that the petitioner was appointed against a regular vacancy and he was temporarily posted under the Deputy CE (WS) .BNGN vice R. N. Adhya, who, it appears from this document, was trans­ferred vice S. K. Bhatta against the vacancy caused by him on account of his promotion. It is also found from the petition and also from the documents annexed thereto that he was allowed to draw the time-scale increments and the question therefore arises that if he was on 'duty' within the meaning of R. 2003 (6), he drew the increments as a perma­nent incumbent. This definition of duty should be read with Rule 2022 cl. (a) of the said Code which provides that all duty in a post on a time-scale counts for in­crements in that time-scale and it appears that at the time of notice he was drawing a salary of Rs.' 410/- (vide Annexure 'IV of Affidavit-in-opposition). 29. In the first instance, Mr. Barua contends that the petitioner cannot be considered as a probationer within the said rule as the appointment letter clear­ly envisages the temporary nature of his appointment and that if he was treated as such his period of probation would have been extended till he was confirm­ed. In the absence of such a procedure being followed his services were liable to be terminated on the footing that his services were purely temporary. In support of his contention he refers to the decision of the Supreme Court in AIR 1958 SC 36 , wherein the following passage occurs at page 42: - "The position may, therefore, be sum­marised as follows: - In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulscrily retired after having put in the prescribed number of years' service or the post is abolished and his service can­not be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appoint­ment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officia­ting basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service". 30. Further it is laid down in para­graph 25 of the said decision as follows: "It follows, therefore, that if the ter­mination of service is sought to be brought about otherwise than by way of punishment, then the Government ser­vant whose service is so terminated cannot claim the protection of Art. 311 (2) and the decisions cited before us and referred to above, in so far as they lay down the principle, must be held to be rightly decided". 31. It appears clear from the said decision that if during the period of pro­bation the service of an incumbent is sought to be terminated, he cannot claim any right to the post, unless his service had ripened as is called in the service rule a quasi-permanent service. The next case to which reference has been made by Mr. Barua is reported in AIR 1957 SC 886 , equal to 1958 SCJ 148, Hart Prescott Singh v. Uttar Pradesh Govern­ment. This decision in my opinion can­not be attracted in support of the respondent's case. The next case to which reference is made is reported in (1964) 4 SCR 135 = ( AIR 1963 SC 1552 ). Their Lordships held inter alia in this case that as a probationer, the appellant was liable to be discharged during that period subject to the rules in force in that count. There is no dispute that an incumbent can be discharged during the period of probation. Their Lordships held inter alia in this case that as a probationer, the appellant was liable to be discharged during that period subject to the rules in force in that count. There is no dispute that an incumbent can be discharged during the period of probation. I have perused the judgment of the Supreme Court reported in AIR 1966 SC 1529 , The Divisional Personnel Officer, Southern Railway, Mysore v. Raghabendra Char, but I am of opinion that the decision as given by their Lordships in that case has no sem­blance to the facts in the instant case and as such, such a decision cannot be attracted in aid of the respondents. 32. Now let me turn to the actual facts. I have already quoted the appointment letters as also the subse­quent orders passed by the Chief Engineer. The order-Annexures 'B' and "C of the petition-speaks of an existing substantive vacancy against which the petitioner was appointed and such appointment was in the chain of vacancy caused by the promotion of Sri S. K. Bhatta. The expression 'regular' as used in Annexure 'B' in its dictionary mean­ing means 'permanent' or a post having some stability. These two documents on the face of them clearly go counter to the terms of appointment as given in the first appointment letter as per Anne­xure 'I' to the Affidavit-in-opposition: Mr. Barua has urgued that the fact that he was temporarily posted will go to show that he was temporarily appointed to the post. But I may say in this con­nection that there is a good deal of difference between a 'temporary appoint­ment' and a 'temporary posting'. There-is no inflexible rule that an incumbent taken into permanent cadre cannot be posted temporarily at any post. There­fore, it boils down to a patent fact that he was appointed as (1) a probationer in the first instance and (2) he was appoint­ed against a regular vacancy. Accord­ingly I am of opinion that the terms in the appointment letter regarding tem­porary nature of the appointment were deviated from after a month and the petitioner was in fact treated to be hold­ing the post against a substantive vacancy, presumably in terms of the employment notice that the temporary post had the likelihood of being made-permanent. 33. Accord­ingly I am of opinion that the terms in the appointment letter regarding tem­porary nature of the appointment were deviated from after a month and the petitioner was in fact treated to be hold­ing the post against a substantive vacancy, presumably in terms of the employment notice that the temporary post had the likelihood of being made-permanent. 33. The next important point for con­sideration is whether the period of pro­bation was automatically extended in order that he might be dealt with, with­out resort being had to the provision of Article 311, in the absence of any rule-in this regard. I have already said that a probationer means a railway servant employed on probation in or against a substantive vacancy in the cadre of department as given in the Establish­ment Code. Furthermore, I have said" that under the Code, all appointments, will be made on probation for one year. This rule does not say that the auth­orities have any power either to extend! the period of probation or not to do so. In the absence of such a provision I' am of opinion that the period of proba­tion cannot be extended and the said1 rule appears to be inflexible in the sense that the period of probation should only be limited to the period of 'one year'. Mr. Barthakur contends accordingly that since his period of probation cannot be extended under the rule his continua­tion in service beyond one year gives him the right to confirmation. In support of his contention he has referred me to the Supreme Court decision in (1968) 17 FLR 9 = ( AIR 1968 SC 1210 ). In this case their Lordships dealt with .a rule which provides that on completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory, he may dispense with his services or may extend his period of probation by such period as he may deem fit ......... provided that the total period of probation including the extension, if any, shall not exceed three years. provided that the total period of probation including the extension, if any, shall not exceed three years. On this rule, their Lord­ships have held inter alia as follows:- "Whereas in the instant case the ser­vice rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on pro­bation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the proba­tionary period beyond the maximum period fixed by it. In such a case it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication". 34. Their Lordships in making the above observation were not oblivious of the earlier Supreme Court decisions in which it was held that where on the completion of the specified period of probation, an employee is allowed to continue in the post without an order of confirmation, the only possible view to take in the absence of anything to the contrary in the order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication. In all the cases reviewed, the condition of service of the employee permitted exten­sion of the period for an indefinite period and there was no service rule forbidding its extension beyond a certain maximum period. 35. In the instant case the above con­ditions are not present in the Establish­ment Code and therefore, in the absence of any rule for extending the period of piobation or putting a fetter upon the period of probation, the rule as to pro­bation as it stands is inflexible and it should be given its proper meaning with reference to the terms of appointment given in Annexures 'A' and 'B' of the petition as discussed before. According­ly it is permissible to draw the inference that the employee who was permitted to continue beyond the maximum period of probation has been confirmed in that post by implication. 36. According­ly it is permissible to draw the inference that the employee who was permitted to continue beyond the maximum period of probation has been confirmed in that post by implication. 36. I shall at the next place deal with the question of the notice which was served upon the petitioner by the P. A. to the Chief Engineer, N. E. F. Railway, Maligaon. Regarding notice the condi­tion thereof has been made in Anne­xure I of the Affidavit-in-opposition. It envisages that the appointment is ter­minable on 14 days' notice on either side and that no such notice is required amongst others, if the sanction to the post expires. But it appears from Anne­xure 'B' of. the petition that he was given one month's notice terminating his service as a Draftsman. It is stated therein that consequent on reduction of establishment and abolition of certain-temporary work-charged posts of Senior Draftsman and Draftsman, the petitioner was rendered surplus to the requirement of the Railway and therefore, he was-given notice of one month with effect from 31-1-68, on expiry of which his service should terminate on 1-3-68 (fore­noon). In this notice also, an alternative offer was given to him for appointment as a Trainee Assistant Station Master (vide Annexure 'E' of the petition). This is dated 16-1-68, i.e. before his services were terminated by notice as per Anne­xure 'D'. Against this notice, an appeal was preferred to the General Manager as per Annexure 'G' in which it was said that all of a sudden his pay was reduced with effect from 1-12-67 without giving any notice to him, nor the reason was made known to him for the reduction of pay which amounted to penalty. Against this, no specific reply was given-to the petitioner but it appears that his-previous representations for alternative posts dated 1-2-68 and 9-8-68 were turn­ed down by the Chief Engineer (vide-Annexure V of the Affidavit-in-opposi­tion). In the Affidavit-in-reply by the peti­tioner, it was clearly stated that he was-not given one month's notice or 14 days' notice as the case may be in terms of the letter of appointment for termination of his service as Senior Draftsman. Accord­ing to the petitioner, such an action was-arbitrary and he could not be removed from the post of the Senior Draftsman without requisite notice being served on. him. Accord­ing to the petitioner, such an action was-arbitrary and he could not be removed from the post of the Senior Draftsman without requisite notice being served on. him. There appears to be no challenge to the statement of the petitioner that he was reduced in rank to the post of the Draftsman on 1-12-67 without assign­ing any reason and the petitioner under protest accepted this situation. Accord­ingly the question would arise in such circumstances as to whether appropriate notice as to termination of his service as Senior Draftsman was given to him in terms of the appointment letter. No document has been placed before me to show that the sanction of the post of the Senior Draftsman terminated when he reverted to his original post from 1-12-67, in order to exonerate the department from its liability to issue notice. The absence of such a document in record warrants the conclusion that he was reamoved from the post of the Senior Draftsman in clear flagrance of the terms of the appointment letter. In the affidavit-in-opposition it has not been stated as to the time when the sanction to the post terminated. In such circumstances, the notice to terminate the service as per Annexure 'D' of the petition was notice for terminating his services as Draftsman. As such, I am clearly of opinion that this notice cannot be treated to be a notice in accordance with the terms of appointment letter for termination of his service as a Senior Draftsman and as such his removal therefrom and reduc­tion in rank without notice amount to .non-observance of the Department's own letter of appointment. I have already stated that no specific case has been made out as to the date when the sanction for the post of Senior Drafts­man terminated and as such before he was brought down to the post of Drafts-man, notice ought to have been served "upon him. 37. As the petitioner succeeds on the points stated above, I need not go into the question whether the notice issued by the Personal Assistant to the Chief Engineer terminating his services as Draftsman is valid or not. 38. In such circumstances, I respectfully differ from the view expressed by the Hon'ble Mr. Justice Pathak and agree with the view and the conclusion arrived at by the Hon'ble Chief Justice. 39. 38. In such circumstances, I respectfully differ from the view expressed by the Hon'ble Mr. Justice Pathak and agree with the view and the conclusion arrived at by the Hon'ble Chief Justice. 39. In the result, the application must succeed and the rule should be made absolute. It is held by me that the peti­tioner was removed from the service as a Senior Draftsman in contravention of Article 311 of the Constitution and there­fore a writ in the nature of mandamus should be issued directing the respon­dents not to give effect to the impugned order dated 31-1-68 terminating the services of the petitioner. 40. The petitioner will get costs. Hear­ing fee being assessed at Rs. 100/- Order accordingly.