D. Falshaw,H.R. Khanna , JJ. - (1.)THIS is an appeal filed by the Union of India and another against the order of the learned Single Judge dismissing a petition filed under Order 47 rule 1 read with section 141 and section 151, Civil Procedure Code for review of his order of the 14th of September 1961 by which he partially allowed a petition filed under Article 226 of the Constitution by Shankar Singh respondent.
(2.)THE facts are that Shankar Singh was serving as an employee of the Union in the Posts & Telegraphs Department and in 1958 he held the permanent post of Daftri in the office of the Divisional Engineer, Telegraphs, at Jullundur. In October 1958 he was served with a show cause notice by the Deputy Divisional Engineer, Telegraphs, on a charge that he had been absent from duty without prior leave, and at the same time the Deputy Divisional Engineer passed an order suspending him pending the enquiry, In the enquiry the charge was found to be established against him and order was passed by the Deputy Divisional Engineer removing him from service on the 17th of February 1959. The result of his appeal against this order to the Divisional Engineer was that on the 81st of March 1959 his punishment was changed from removal from service to reduction from the post of Daftri to that of peon.
Shankar Singh then filed a writ petition in this Court, Civil Writ No. 1330 of 1959. which was dismissed by Dulat J. on the 4th of March 1960 as having become anfractuous because of a change in the circumstances. This change was in the form of an order of the President of India communicated by the Assistant Director General of Posts & Telegraphs, New Delhi, to the Postmaster General, Punjab Circle, in a letter dated the 7th of January 1960. It was stated therein that on a review of the case it had been noticed that the penalty of removal from service had been imposed by the Deputy Divisional Engineer, Telegraphs, who was an authority lower than the authority which had appointed Shankar Singh to the post of Daftri namely, the Divisional Engineer, which contravened the provisions of rule 14 (4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and since the Divisional Engineer did not himself mike enquiries while modifying the penalty to that of reduction to a lower grade, the original defect in the proceedings was not rectified. The consequent order of the President reads -

In exercise of the powers conferred by rule 32 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, the President is therefore pleased to set aside the orders imposing the penalty of removal from service contained in the memo No. Q.1137/ Col. II/KW/40 dated the 17th of February 1959 from the Deputy Divisional Engineer, Telegraphs, Jullundur, and also the appellate order modifying the penalty to that of reduction to the cadre of peon contained in memo Mo. Q -1137/Col. II/KW/12 dated the 31st of March 1959 from the Divisional Engineer, Telegraphs, Jullundur, and to remit the case to the Divisional Engineer, Telegraph, Jullundur, for de novo proceedings.

(3.)IN pursuance of this order the Divisional Engineer passed an order on the 16th of January 1960 relating the above circumstances and at the same time ordering that under rule 12(3) Shankar Singh would continue to be in the service of the Posts and Telegraphs Department as a Daftri under suspension from the date he was initially placed under suspension by the order of the Deputy Divisional Engineer until the de novo proceedings were finalized or the suspension order was lifted. It is this order which was challenged in the writ petition filed by Shankar Singh which gives rise to this appeal.