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31. Mr. A.K. Sen, the learned counsel for the respondents, submitted that the petitioner cannot rely on his original appointment as after the partition of Bengal the old officers ceased to exist and the petitioner became an officer under the State of West Bengal. This argument is obviously based on a misapprehension as under Article 375 of the Constitution the old officers must be deemed to have continued even after partition of Bengal.

32. In my view the order of dismissal must be held to have been made by a person not competent to make it and was wholly without jurisdiction. The Order was in breach of the Constitution of India, Article 311(1) and in contravention of the Rules of 1936 (Clauses 8 and 9). In the circumstances, even if the Order of dismissal is regarded as an executive or administrative order it is liable to be interfered with by this Court under Article 226 of the Constitution.