The main legal point established in the judgment is that placing a subordinate officer in independent charge of the current duties of a vacant post in a higher appointment does not amount to promotion to the higher post.

( 1 ) THE petitioner and respondents 3 to 8 are excise Inspectors (Juniors in the Mysore Excise service. The posts of Excise Inspectors, Senior and Junior, are class III posts; the posts of the assistant District Excise Officers are class II posts. The petitioner has challenged the order of the State Government (respondent 1) made on 27 September, 1967 appointing respondents 3 to 8 to be in independent charge of the posts of Assistant District Excise officers at different places. The challenge is made on two grounds : first the impugned appointments are opposed to the cadre and Recruitment Rules, and second, the petitioner being senior to respondents 5 to 8, he should have been appointed and by the appointment of his juniors, the petitioner has been denied the protection guaranteed by Arts. 14 and 16 of the constitution of India.

( 2 ) IN order to appreciate the contentions urged by the petitioner, it is necessary to set out the circumstances under which the impugned order came to be made. Consequent on the relaxation of prohibition, when it became necessary to increase the cadre strength of Assistant District excise officers, the State by order No. HD 154 EDC 67, dated 31 August, 1967, created twelve new posts of Assistant District Excise officers; three became available consequent on certain other orders made by the Government.

( 3 ) UNDER the Mysore Excise Department Service Cadre Rules, 1963, the cadre strength of assistant District Excise Officers before the aforesaid orders was two permanent and five temporary. The cadre strength of Excise Inspectors (Senior) was four and that number has not been increased. The Mysore Excise Department Service Recruitment Rules, 1963, made by the governor under Art. 309 of the Constitution provides for appointment of Assistant District excise Officers by promotion - 80 per cent. from the cadre of Excise Inspectors (Senior) and 20 per cent. from the post of Manager and from the cadre of senior clerks - on the basis of seniority-cum-merit. The said rules provide for appointment of Excise Inspectors (Senior) by promotion from the cadre of Excise Inspectors (Junior) and the minimum qualification for such promotion is five years of service as Excise Inspector (Junior ).

( 4 ) WHEN vacancies of fifteen posts of Assistant District Excise Officers were newly created in august and September 1967 in the manner referred to above, there were only four Excise inspectors (Senior) and one senior clerk eligible for promotion and they were promoted as per para. II of the impugned order. Since there were no more Excise Inspectors (Senior) available for promotion and the Excise Inspectors (Junior) eligible for promotion had to be promoted in the first instance as Excise Inspectors (Senior) and thereafter promoted as Assistant District Excise officers, the State Government as per Paras. III and IV of the impugned order appointed respondents 3 to 8 and three others to be in independent charge of the posts of the Assistant district Excise Officers under rule 32 read with rule 68 of the Mysore Civil Services Rules, 1958, for a period of four months or till the date of relief of their independent charge, whichever is earlier, purely on a temporary basis. It is necessary to set out in full Paras. III and IV of the impugned order :

"iii The following appointments of Excise Inspectors and senior clerks of the Excise department to be in independent charge of the posts of Assistant District Excise Officers are ordered with immediate effect, in the vacancies newly sanctioned in G. O. No. HD 154 EDC 67 dated 31 August 1967 on their present grade and pay as Excise Inspectors and senior clerks under rule 32, read with rule 68 of the Mysore Civil Services Rules, 1958, for a period of four months or till the date of relief of their independent charge whichever is earlier, from the date of their taking charge of the respective posts, purely on a temporary basis : (1) * * * (2) * * * (3) Sri K. Puttara