JUDGMENT 1. - Shri Tejraj Bhandari, the petitioner in this writ petition filed under Article 226 of the Constitution, bad entered Government Service on 17th April 1947 as Warehouse Officer in the Excise Department of the erstwhile Mewar State. After the formation of the State of Rajasthan, the petitioner became an employee of the State of Rajasthan and he continued in the Excise & Taxation Department of the Govt, of Rajasthan. In December, 1952, the petitioner was appointed as Inspector Grade 111 in the Excise & Taxation Department He was appointed as Inspector Grade II in the Excise Department with effect from 26th March, 1957 and was confirmed on the said post with effect from 23rd February 1960 On 31st January, 1962, the petitioner was appointed as Inspector Grade I on officiating basis in the Excise and Taxation Department. On 1st July, 1964, the Excise and Taxation Department of the Government of Rajasthan was bifurcated into two Departments, viz. Commercial Taxes Department and the Excise Department. After the aforesaid bifurcation, all permanent Inspectors of the Excise and Taxation Department were required to exercise their option as to whether they would like to be considered for appointment as Inspector to the Excise Department or in the Commercial Taxes Department. By his communication dated 24th September, 1964, the petitioner exercised his option for appointment in the Excise Department. But in the meanwhile on 11th September, 1964, the petitioner was promoted on the post of Assistant Sales Tax Officer (subsequently designated as Assistant Commercial Taxes Officer) on officiating capacity and the petitioner joined the same post on 8th October, 1964. The question of allocation of the Inspectors of the former Excise and Taxation Department was considered by the Government on 23rd July, 1966 and it was decided that 18 Inspectors who were working in the Excise Department should be allocated to the Commercial Taxes Department and 10 Inspectors Who were working in the Commercial Taxes Department should be allocated to the Excise Department and that the remaining Inspectors should be allocated to the Departments in which they were working at that time As a result of the aforesaid decision, the petitioner who was working in the Commercial Taxes Department on 23rd July, 1966, stood allocated to the Commercial Taxes Department. By notification dated 16th September, 1971, the Governor of Rajasthan promulgated the Rajasthan Commercial Taxes Service Rules, (hereinafter referred to as the 'Rules'), 197l, which were published in the Rajasthan Rajpatra dated 14th October, 1971. The Rules provide for the Constitution of the Rajasthan Commercial Taxes Service and Rule 5(4) of the Rules which makes provision for the initial constitution of the said service lays down that all persons who have been continuously holding the post of Assistant Commercial Taxes Officer (including higher posts) in ad hoc, officiating or temporary capacity since 1st January, 1968 and who were substantive Commercial Taxes Inspectors on the said date shall be screened for having their suitability adjudged for the posts of Assistant Commercial Taxes Officers by the Committee referred to in sub-rule (2) of Rule 17, provided they possess five years' experience on the posts of Commercial Taxes Inspectors (including higher posts) on the date of commencement of the Rules In accordance with the Rules, the petitioner was selected for appointment as Assistant Commercial Taxes Officer and by order dated 2nd August, 1973. the petitioner was confirmed on the post of Assistant Commercial Taxes Officer with effect from 14th October, 1971. Although the petitioner has been appointed substantively on the higher post of Assistant Commercial Taxes Officer, he was never confirmed on the post of Inspector Grade I He, therefore, filed this writ petition wherein be has sought an appropriate writ directing the respondents to confirm the petitioner on the post of Excise Inspector Grade I with effect from 31st January, 1962 and to give to the petitioner all consequential benefits in the Excise Department as if he was confirmed with effect from 31st January 1962 and alternatively, the petitioner has prayed that the respondents may be directed to confirm the petitioner as Commercial Taxes Inspector Grade I and to give to the petitioner all the benefits which are due to him on that account. 2. 2. In the writ petition, the petitioner has submitted that a number of persons, who were junior to the petitioner in the cadre of Excise Inspectors Grade II have been confirmed as Excise Inspector Grade I with effect from 13th June, 1968 but the petitioner, even though he is senior was not considered for confirmation on the post of Excise Inspector Grade I. The petitioner has submitted that on account of his non-confirmation on the post of Inspector Grade I, the emoluments of the petitioner had been affected and further that his substantive appointment as Assistant Commercial Taxes Officer might also be open to challenge inasmuch as under the Rules only a person who was a substantive Commercial Taxes Inspector on lit January 1968 could be appointed as Assistant Commercial Taxes Officer and the petitioner was not holding the post of Commercial Taxes Inspector in substantive capacity on 1st January, 1968. 3. In the reply, which has been filed on behalf of the respondents to the writ petition, it is stated that the confirmation of the inspector Grade I in the Excise Department took place in 1968 and before that petitioner had been finally allocated to the Commercial Taxes Department and therefore, there was no question of his being confirmed as Inspector Grade 1 in the Excise Department and that the petitioner could not make a grievance on the ground that Excise Inspectors Grade II, who were junior to the petitioner had been confirmed as Excise Inspectors Grade 1. In the said reply, it Is also stated that the petitioner could not claim that he should be confirmed on the post of Commercial Taxes Inspector Grade I with effect from 31it January, 1962 at he was not substantively promoted on that date. 4. During the pendency of this writ petition in this court, the petitioner has retired from the service. 5. 4. During the pendency of this writ petition in this court, the petitioner has retired from the service. 5. Shri M. Mridul, the learned counsel for the petitioner has submitted that retirement of the petitioner from the service is of no consequence on the maintainability of the writ petition because as a result of the non- confirmation of the petitioner on the post of Inspector Grade I, his emoluments as well as has pension have been affected and if the petitioner succeeds in this writ petition, he will be entitled to higher pay - for the period subsequent to the date of his confirmation as Inspector Grade I as well as higher pension. The learned counsel for the petitioner has submitted that in Note I in scale 18 of Schedule IV of the Rajasthan Civil Services (Revised Pay Scale Rules, 1961, it is laid down that a person whose pay in the new scale is fixed at Rs 210 or less shall have his pay subsequent to reaching the scale of Rs 210 re-fixed at Rs. 230 instead of Rs. 220 According to the learned counsel for the petitioner, the petitioner reached the stage of pay of Rs. 210 on 1st January, 1964 and that If he had not been -promoted as Assistant Commercial Taxes Officer on 8th October, 1964, his pay would have been refixed at Rs 230 but the petitioner as was not a confirmed Inspector Grade I, his pay was fixed at Rs. 225 per month, when he was promoted as Assistant Commercial Taxes Officer on 8th October, 1964 and that if he had been confirmed as Inspector Grade I his pay would have been fixed at Rs 245 per month and not Rs. 230 per month on 1st January 1965. In support of his aforesaid contention, the learned counsel for the petitioner has referred to the communication dated 6th February, 1965 received by him from the Accountant General Rajasthan. wherein it is stated that since the petitioner was Officiating on a non-gazetted post prior to his promotion on Gazetted post of Assistant Commercial Taxes Officer, the benefit of note I below scale 18 of the Revised Scales, 1961 was not admissible to him.. wherein it is stated that since the petitioner was Officiating on a non-gazetted post prior to his promotion on Gazetted post of Assistant Commercial Taxes Officer, the benefit of note I below scale 18 of the Revised Scales, 1961 was not admissible to him.. The submission of the learned counsel for the petitioner is further that it was incumbent upon the respondents to have confirmed the petitioner on the post of Inspector Grade I before appointing as substantively on the post of Assistant Commercial Tuxes Officer inasmuch as under rule 5 (4) of the Rules, only substantive Commercial Taxes Inspectors were eligible for being considered, for being appointed on the post of Assistant Commercial Taxes Officer The submission of the learned counsel for the petitioner is further that the bifurcation of the Excise and Taxation Department into Excise Department and the Commercial Taxes Department and the allocation of the petitioner to the Commercial Taxes Department cannot have any bearing on the non-confirmation of the petitioner on the post of Inspector Grade 1, and that the petitioner was entitled to be confirmed either as Excise Inspector Grade I or as Commercial Taxes Inspector Grade I. 6. In view of the fact that the petitioner has retired from service it is not necessary to go into the question whether the appointment of the petitioner as Assistant Commercial Taxes Officer without his being confirmed as Inspector Grade I was in accordance with the Rules. But it is necessary to deal with the question whether the petitioner was entitled to be confirmed as inspector Grade 1 inasmuch as the non-confirmation of the petitioner as Inspector Grade I has affected the emoluments of the petitioner 7. But it is necessary to deal with the question whether the petitioner was entitled to be confirmed as inspector Grade 1 inasmuch as the non-confirmation of the petitioner as Inspector Grade I has affected the emoluments of the petitioner 7. I find myself in agreement with the contention urged by the learned counsel for the petitioner that the bifurcation of the Excise and Taxation Department of the Government of Rajasthan into Excise Department and the Commercial Taxes Department and the allocation of the petitioner to the Commercial Taxes Department on 23rd July, 1966 can be no consequence in the matter of confirmation of the petitioner on the post of Inspector Grade I In my opinion, the petitioner was entitled to be considered for confirmation on the post of Inspector Grade I and if he was found fit for confirmation before 23rd July, 1966 then he ought to have been confirmed as Excise Inspector Grade I and if be was found fit tor confirmation after 23rd July, 1966, he ought to have been confirmed as Commercial Taxes Inspector Grade I. The fact that the petitioner had been officiating has an Assistant Commercial Taxes Officer since 8th October, 1964 cannot be a ground for not considering the case of the petitioner for confirmation on the post of Inspector Grade I. 8. The learned Deputy Govt. Advocate has submitted that the non-confirmation of the petitioner on the post of Inspector Grade I does not result in any loss of the emoluments or pension to the petitioner and, therefore, the petitioner cannot seek any relief from this Court requiring the respondents to confirm the petitioner on the post of Inspector Grade I . I find that there is no basis in the pleadings for the aforesaid contention urged by the learned Deputy Government Advocate. The petitioner, in his writ petition has asserted that as a result of his non-confirmation on the post of Inspector Grade I, the petitioner will suffer considerable loss in the matter of fixation of his salary at all stages and it might also affect gratuity. There is no denial of the aforesaid averment in the reply filed on behalf of the respondents. On 25th November, 1978, the petitioner filed an affidavit in this court wherein he has explained how his non-confirmation on the post of Inspector Grade I has affected his emoluments. There is no denial of the aforesaid averment in the reply filed on behalf of the respondents. On 25th November, 1978, the petitioner filed an affidavit in this court wherein he has explained how his non-confirmation on the post of Inspector Grade I has affected his emoluments. The averments contained in the said affidavit have also not been controverted 'by the respondents The contention urged by the learned Deputy Govt. Advocate that the petitioner will not suffer any loss in Emoluments and pension, as a result of his non-confirmation on the post of Inspector Grade 1, cannot, therefore, be accepted. 9. In the result this writ petition is allowed and it is declared that the respondents are bound to consider the case of the petitioner for confirmation on the post of Inspector Grade 1 and if the petitioner is found to be fit for confirmation from any date before 23rd July, 1966 he may be confirmed as Excise Inspector Grade I and if he is found fit for confirmation from any date after 22nd July, 1966, ho may be confirmed as Commercial Taxes Inspector Grade I. It is further declared that the petitioner wilt be entitled to all the consequential benefits which may be due to him as a result of his being confirmed on the post of Inspector Grade I. There will be no order as to costs in this writ petition,Petition allowed. *******