A person appointed on probation to a substantive post acquires a lien on the post after completing the probation period and continuing in service without any order of confirmation.

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. 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 p