- (1.) A. P. Mishra, J. Heard learned counsel for the petitioner and the learned Standing Counsel.
(2.) IN view of the exchange of affidavits the present writ petition is being disposed of finally at the stage of admission in accordance with the Rules of the Court. The petitioner seeks mandamus directing the respondents to promote him on the post of Assistant Excise Commissioner (U. P. Excise Class ii) from the date i. e. 22-8-1989 and declare him eligible for promotion on the said post. Petitioner has further prayed for a direction to the respondents to relax the requirement of 15 years' minimum service as Excise Inspector for promotion on the post of Assistant Excise Commissioner in accordance with Rule 18 of the U. P. Excise (Class II) Rules, 1970 (hereinafter referred to as the said Rules ). According to the petitioner he has been selected for the post of Excise Inspector in the Excise Department belonging to the batch of 1970 but on the indecision of the Commission pertaining to some dispute the actual appointment which was to be made in the year 1970 was made in the year 1977. According to the petitioner, though he was appointed in the year 1977, he is treated to have been appointed in the year 1970 for the purpose of senio rity. In this regard the petitioner has made a representation earlier wherein he has alleged that the persons junior to him have been promoted but on account of the condition of Rule 5 of having 15 years' service as Excise Inspector, his case could not be considered. The contention is that though he belonged to the batch of 1970 but has been selected for appointment in the year 1977, he has completed more than 15 years service on the said post of Excise Inspector for being promoted on the post of Assistant Excise Commissioner in the year 1989 but his case could not be considered and actually the order passed in the year 1977 kept the petitioner in loss of 7 years which makes the petitioner's case for relaxation as required under Rule 18. For ready reference Rule 5 and Rule 18 are quoted as under : "rule 5. Recruitment of Service.-Recruitment of the service shall be made by promotion from amongst confirmed Superintendents of Excise in the manner prescribed in Rule 7 : Provided that if any year a sufficient number of confirmed Superinten dents of Excise are not available for promotion the field of eligibility may be extended to include ; (i) persons appointed to the posts of Superintendent of Excise after regular selection in officiating or temporary capacity ; and (ii) permanent Excise Inspectors who have put in at least 15 years of service on the first day of July of the year in which the vacancy has occurred : Provided further that the Governor may fill any post in the service by temporary transfer of an officer of the Uttar Pradesh Civil Service (Executive Branch) in the Junior Scale for a period ordinarily not exceeding three years. Explanation.-'fifteen years of service', rendered to clause (ii) of the first proviso above shall mean fifteen years service commencing from the date of regular appointment in consultation with the Commission. Rule 18. Relaxation from conditions of Service.-Whets the Govern ment is satisfied that the operation of any Rule regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may, in consultation with the Commission, by order dispense with or relax the require ment of that Rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. "
(3.) ON perusal of the representation we do not find that the petitioner has raised any specific case for relaxation of conditions of service as contemplated under Rule 18 though he claims his appointment by promotion as aforesaid when especially the juniors to him have been promoted, that is to say, that the persons who have been appointed after 1970 batch. Rule 18 aforsaid empowers that where the Government is satisfied that the operation of any Rule regulat ing the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may in consultation with the Commission by order dispense with or relax the requirement of that Rule, to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. So far as Rule 5 (ii) is concerned it provides that a permanent Excise Inspector who has put in at least fifteen years of service on the first day, of July of the year in which the vacancy has occurred could be eligible. The representation of the petitioner was rejected as by the said provisions since he has actually not worked 15 years taking it the year as 1977 the year when the dispute was resolved and petitioner along-with other was appointed with effect from 1977, hence his claim was rejected. While rejecting the said claim no consideration was made pertaining to Rule 18 of the said Rules. In view of this, we feel that on the facts and circumstances of this case and also looking to the hardships of the petitioner the Government should consider the claim of the petitioner afresh under Rule 18 of the said Rules on the facts and circumstances of this case, in case the petitioner makes a fresh representation in this regard before respondent No. 1 within one month and the said authority will preferably decide the same within eight weeks from the date of filing the certified copy of this order before him. Respondent No. 1 is further directed to take into consideration the facts and circumstances of the case of the petitioner and pass an appropriate speaking order on the said representation in accordance with law. Respondent No. 1 will consider this in the light of the petitioner's claim of his being entitled for being promoted from the year 1989 on the post of Assistant Excise Commissioner. With the aforesaid observations the present writ petition is disposed of finally. Petition disposed of. .;