( 1 ) THE learned Advocate General raised three preliminary contentions: (1) that this Court has no jurisdiction to issue a writ of certiorari as against the Union of India; (2) that the order of the Commissioner merged in the final order of the President as the appellate authority and therefore the order of the President rejecting the appeal of the petitioner and thereby confirming the order of the authority of the first instance was the only effective and outstanding order and that being so no writ can be issued even against the Commissioner or against his order of removal and (3) that assuming that there was no merger there would be two out standing orders and this Court would not issue a writ against the Commissioner as that would be putting the Commissioner in an embarrassing situation in that he would have to commit a breach of either the order of this Court or that of the appellate authority.

( 2 ) MR. Vakil on the other hand urged that there was no merger of the order of the authority of the first instance into the order of the appellate authority and that the only effective order was the order of the Commisisioner the appellate order being merely one of dismissal of the appeal and confirming the order of the Commissioner. He also urged that the order of the Commissioner was a nullity as it contravened the principles of natural justice that there could be no effective order of an appellate tribunal over an order which was a nullity and therefore the order of the Commissioner being a nullity this Court would have jurisdiction to set aside that original order.

( 3 ) THERE has been considerable controversy on the question as to the effect of an appellate order upon the order passed by the authority of the first instance in a departmental inquiry. It was urged that when an appellate authority passes its order in an appeal against the order of the authority of the first instance dismissing the appeal and thereby confirming the original order the original order merges or becomes incorporated in the order of the appellate authority and in that event it is the order of the appellate authority alone which is the effective and outstanding order. Unlike a tribunal exercising Revisional jurisdiction an appellate court or authority has no discretion not to admit an appeal if an appeal lies nor has it a discretion not to grant relief if the appellant is entitled to a relief in law. That would not be the position in the case of a revisional court An appeal besides is a continuation of the suit or the original proceeding. An appellate court can do any of the following three things : (1) dismiss the appeal (2) allow the appeal and set aside the decree and pass its own decree or (3) alter or modify the decree

( 4 ) SINCE an appeal is a continuation of a suit of an original proceeding a decree passed in such a suit or proceeding gets merged in the appellate decree. When an appeal is dismissed the appellate court confirms the decree passed in the suit and it is the decree passed by the appellate court or the tribunal that becomes the subject matter of a further appeal if any or of an execution proceeding. When it allows an appeal the original decree is set aside and the appellate court passes its own decree or order. When it modifies or alters the original order or decree the appellate court again passes its own decree. On the other hand the process is different when a revisional court passes its order. When a revision is rejected all that it means is that the revisional court declines to interfere with the order passed by the lower court or authority. When the revision court interferes it sets aside or modifies the order of the lower court or authority but there is no merger of the original order in the order passed by the revisional authority. Therefore if it is found that the order passed by the Commissioner merged into the order passed by the President as the appellate authority it would be the latter order that would b