- (1.) D. S. Sinha, J. Heard Shri M. D. Singh, learned Counsel appearing for the petitioner, Shri Vinay Malviya, learned Standing Counsel and Shri Vivek Chaud hary, learned Counsel appearing for the respondents.
(2.) THE petitioner is employed in the Excise Department of the State of Uttar Pradesh as Statistician on which post he was initially appointed on ad-hoc basis on 23rd October, 1972 and was confirmed with effect from 1st January 1981. His grievance raised before this Court is that he was denied promotion to the post of Office Superintendent four times during the period between 1984 and October, It is not disputed that the service conditions of the petitioner are regulated by Uttar Pradesh Excise Department Min isterial Service Rules, 1980, here in after called the 1980 Rules, as amended by the Uttar Pradesh Excise Department Mini sterial Service (First Amendment) Rules, 1991, here in after referred to as 1991 Rules, which came into force on 2nd November, 1991. The promotion to the post of Su perintendent under the 1980 Rules was by promotion from amongst the permanent Statistician, Senior Auditor, Accountant and in case of non -availability of suitable persons for promotion, the field of eligibility could be extended to include permanent Assistant Superintendent. In case no suitable Assistant Superintendent was available for promotion recruitment could be made from amongst the per manent Noters and Drafters. Thus, by vir tue of being permanent Statistician the petitioner was eligible for consideration for promotion to the post of Superinten dent.
(3.) THE reason for non-consideration of the case of the petitioner for promotion as given in the counter- affidavit filed on behalf of the Excise Department is that with effect from llth August, 1983 the post of Office Superintendent was meant to be filled by the incumbents belonging to clerical cadre. THE Statisticians had been excluded from the clerical cadre and were included in the Accounts cadre. This asser tion is disputed by the petitioner. It is not necessary to examine the correctness of the rival contentions as even if the case of the petitioner regarding his claim for consideration for promotion to the post of Office Superintendent is accepted to be correct, the Court may not be in a position to repair the resultant injury after the lapse of several years, spe cially in view of the fact that each time petitioner was allegedly excluded from consideration for promotion he ac quiesced the same and never challenged before any appropriate forum.;