P.B.Mukharji, J. - (1.) This is an application by Anil Nath De for a writ of mandamus or certiorari in respect of an order of the Assistant Collector of Excise, dated the 16th April, 1956 and an order of the Collector of Central Excise, dated the 7th May, 1956.
(2.) The petitioner was a temporary Upper Division Clerk. He was transferred to Kalimpong in June 1949 in the normal course. Ha applied thereupon for leave on the ground of illness. The Assistant Collector of Central Excise, Kalimpong directed him to appear before the Staff Surgeon for medical examination. On examination the petitioner was found fit to carry out the duties and to join the duties on the 11th July 1949. But instead of joining his duties the petitioner applied on the 12th July, 1949 for an extension of leave for three more weeks. He was again medically examined by a Staff Surgeon on the 2nd December, 1949, when this time the Staff Surgeon found him unfit to resume his duties. It was however found on the scrutiny of the service book and the leave account of the petitioner that he had exhausted all the leave that was due to him and the extraordinary leave granted to him exceeded 90 days on the 11th October, 1949. He was, therefore, regarded as having ceased to be in the employment under rule 14(c) of the Revised Leave Rules 1933. He was discharged from service with effect from the 11th October, 1949. The petitioner was in the department for 5 years by that time.
(3.) On purely compassionate grounds the petitioner was offered an officiating temporary post of Upper Division Clerk in the scale of Es. 80-5-120 etc. plus other allowances. This appointment was made on the 10th January, 1950. It is this appointment which came to a termination and against which the present petition was made. The petitioner assumed charge of his duties on the 31st January, 1950. His appointment as a temporary Upper Division Clerk was treated as a re-employment and his pay was accordingly fixed at the minimum of the time scale of Upper Division Clerk, that is Rs. 80/- per month. The petitioner passed his departmental examination of his grade in December, 1951. He could not however be declared "quasi-permanent" under the rules because by the 1st July, 1953 he was already more than 28 years old. When the petitioner was reappointed on the 31st January, 1950 his age was 30 years 1 month. When he became qualified for declaration as "quasi-permanent" he was already 33 years 6 months. The petitioner therefore remained a temporary hand and rule 14(c) of the Revised Leave Rules 1933 continued to be applicable to him.;