( 1. ) THIS matter comes before me on a difference between Khan, J. , and Shivdayal, J.

( 2. ) THE main question is whether Article 311 (2) of the Constitution applies to the facts of this case. The petitioner was an employee of the erstwhile Gwalior State which merged on 15 April 1948. The process of integration of services of the various princely States, including Gwalior State, constituting the new State of Madhya Bharat, continued right upto 1 November 1956 when, in pursuance of the provisions of the States Reorganization Act, 1956, the new State of Madhya Pradesh came into existence. By an order of the Director of Education dated 27 December 1955, the petitioner, who was treated to have been a clerk on 15 April 1948, was directed to be Integrated as a head clerk. Being aggrieved by that order, the petitioner filed an appeal claiming that, on 15 April 1948, he was working as a camp clerk and was not a mere clerk in the office of the Director of Education. The Government of Madhya Bharat, by their order dated 28 October 1956, accepted the appeal, accorded sanction to confirmation of the petitioner on the post of office superintendent in the Education Department and reverted one R. V. Sarvate who was, in consequence, directed to be integrated as a bead clerk. On 30 October 1956, the Director of Education submitted a report in which he pointed out that the order dated 23 October 1956 proceeded on a misconception because it omitted to consider several material facts. Thereupon, by the Impugned order dated 31 October 1956, the order dated 28 October 1956 was reconsidered and set aside and the petitioners appeal was dismissed. The petitioner again represented but the Government of the new State of Madhya Pradesh declined to reopen the case.

( 3. ) SO far as the merits of the case are concerned, the petitioner has not produced any order showing that he was substantively appointed to the post of a camp clerk at any time prior to 15 April 1948. Materials placed on record appear to be contra-indicative. In any event, this is a disputed question of fact which cannot be investigated in these proceedings.

( 4. ) SHIVDAYAL, J. , differing from Khan, J. , took the view that Rajvi Amar Singh v. State of Rajasthan 1958 S. C. R. 1013 had no application to this case. In my view, it does apply because the petitioner can claim to serve only on such terms and conditions as the new State of Madhya Bharat chose to give him. By the final order dated 31 October 1956, he was integrated as head clerk and he is, therefore, disentitled to claim a higher post. But it is claimed that he was previously integrated as office superintendent and was also confirmed on that poet, which could not be taken away from him in disregard of the protection afforded to him by Article 311 (2) of the Constitution. To this, there are, as I will show in a moment, three answers.

( 5. ) BY the order dated 28 October 1956, the Government of Madhya Bharat were pleased to accord sanction to the confirmation of Sri Pitre on the post of office superintendent in the Education Department. This was merely a sanction accorded for the petitioners confirmation and was not, by itself, the order of confirmation, which was to be passed in due course by the Director of Education. It would further appear that before the order of confirmation pursuant to the aforesaid sanction was passed, the sanction itself was revoked. That being so, the petitioner is disentitled to claim that he was confirmed as office superintendent.

( 6. ) SHIVDAYAL, J. , took the view that once a servant of a State is confirmed on a post he cannot be reduced in rank without affording to him the protection of Article 311 (2) because in such a case the reduction itself amounts to a punishment. He relied upon the following observations of the Supreme Court in Parshotam Lal Dhingra v. Union of India 1968 I L. L. J. 544 at 560-561: Shortly put, the principle is that when a servant has right to a post or to a rank either