JUDGMENT : 1. Heard Sri Udayan Nandan, learned counsel for the petitioner and the learned Standing Counsel for the State respondents. 2. This writ petition challenges the orders dated 20 and 26 September 2012 passed by the State Government and the Excise Commissioner respectively. These orders essentially expanded the field of eligibility for Senior Clerks vying for promotion to the post of Excise Inspector and a consequential annulment of the recommendations framed by the Departmental Promotion Committee. A further relief is sought for quashing of proceedings of the fresh recommendations framed by the Departmental Promotion Committee pursuant to the orders aforementioned in its meeting held on 7 November 2012 as also for quashing of an order dated 28 December 2012 passed by the Excise Commissioner rejecting the representation of the petitioner. 3. Sri Nandan, learned counsel, however submits that he chooses to give up prayer (aaaa) subject to rights being reserved to assail the order of the State Government dated 20 September 2012 which contained the principal stipulation which is assailed and led to the denial of the claim of the petitioner for promotion. Sri Nandan further pressed the prayer with respect to grant of notional promotion to the petitioner on the post of Excise Inspector. The issue itself arises in the following backdrop. 4. The petitioner was appointed as a Junior Clerk in the Department of Excise. The relevant statutory rules which governed provide for accelerated promotion to the post of Excise Inspector. These Rules are titled the Uttar Pradesh Subordinate Excise Service Rules, 1992. Rule 5 thereof makes the following provisions : “5. Source of Recruitment:- Recruitment to the various categories of posts in the service shall be made from the following sources: 1. Excise Inspector (i). Eighty percent by direct recruitment. (ii) Ten percent by promotion from amongst the permanent sub-excise Inspectors and (iii) Ten percent by promotion from amongst such persons who are substantively appointed Senior Assistants and Stenographers Grade-II of the Excise Department on the first day of the year of recruitment. Provided that if in any year of recruitment sufficient number of suitable eligible persons are not available for promotion, the field of eligibility may be extended to include the following persons, in the order given below. Provided that if in any year of recruitment sufficient number of suitable eligible persons are not available for promotion, the field of eligibility may be extended to include the following persons, in the order given below. (a) Substantively appointed Senior Clerks and Stenographers Grade-III, who have completed ten years service as such on the first day of the year of recruitment and (b) Substantively appointed Junior Clerks, who have completed fifteen years service as such on the first day of the year of recruitment.” 5. Pursuant to the provisions made in those Rules, the respondents initiated a process for effecting promotions to the post of Excise Inspector. The Departmental Promotion Committee is stated to have met on 14 August 2012 in which the claim of the petitioner for promotion was duly considered and recommended. The Excise Commissioner in terms of a communication of the same date is stated to have apprised the State Government that only 5 Senior Clerks were found eligible for promotion to the post of Excise Inspector. He accordingly recommended the State Government extending the benefit of Rule 5 by relaxing the minimum period of 10 years service as stipulated in respect of Senior Clerks. The recommendation itself appears to have been framed in the backdrop of the Proviso to Rule 5 that took care of a situation where adequate number of eligible persons were not found available for promotion. In that situation the Proviso envisaged that substantively appointed Senior Clerks who had completed 10 years of service would also be considered for promotion and thereafter substantively appointed Junior Clerks who had completed 15 years of service would also be entitled to be considered for promotion. The inter se consideration of Senior and Junior Clerks in terms of the Proviso is evidently controlled by the use of the phrase “…in the order given below”. The provision manifests a clear intent to firstly consider all Senior Clerks who have completed 10 years of service and only thereafter to move further below and consider Junior Engineers with 15 years of service. 6. Pursuant to the recommendation made by the Excise Commissioner, the State Government passed an order on 20 September 2012. The provision manifests a clear intent to firstly consider all Senior Clerks who have completed 10 years of service and only thereafter to move further below and consider Junior Engineers with 15 years of service. 6. Pursuant to the recommendation made by the Excise Commissioner, the State Government passed an order on 20 September 2012. The directions as framed and insofar as they are relevant for the purposes of disposal of the instant writ petition read thus: ^^bl lEcU/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd iwoZ dh Hkk¡rh ,sls ofj”B fyfid ftlus 10 o”kZ dh lsok iq.kZ dj yh gks] og vkcdkjh fufj{kd ds in ij p;u gsrq igys ik= gksxkA rRi’pkr og ofj”Bre fyfid ik= gksxk ftldh ofj”B fyfid ds in ij 10 o”kZ dh fofgr lsokof/k iq.kZ ugha gS fdarq og dfu”B fyfid ds in ij 15 o”kZ dh lsok iq.kZ dj pqdk gks vFkok og ofj”B fyfid ftldh lsok ofj”B o dfu”B fyfid nksuksa inksa ij dqy 15 o”kZ ls vf/kd gksA rRi’pkr os dfu”B fyfid ik= gksaxs] tks 15 o”kZ dh lsok iq.kZ dj pqds gksaA 7. The State Government bearing in mind the provisions made in Rule 5 and the recommendation of the Excise Commissioner provided that while initially all Senior Clerks having completed 10 years of service would be considered, thereafter it would be open for the respondents to also consider the case of those Senior Clerks who had while working as a Senior Clerk and Junior Clerk cumulatively completed 15 years of service. It basically extended the benefit to those Senior Clerks who had not completed 10 years of service as stipulated in Rule 5. While this controversy ensued, the petitioner retired on 31 October 2012 and it is in that backdrop that the prayer for notional promotion is addressed. 8. According to Sri Nandan while it was open for the State to relax a particular condition of service if the exigencies of the situation did so demand, that power could not be read as empowering the State Government to virtually amend the substantive rule itself and that too by way of an executive order. 8. According to Sri Nandan while it was open for the State to relax a particular condition of service if the exigencies of the situation did so demand, that power could not be read as empowering the State Government to virtually amend the substantive rule itself and that too by way of an executive order. Referring to the power of relaxation as conferred on the State Government by virtue of Rule 27, Sri Nandan submitted that even that Rule could not have come to the aid of the State Government and in any case could not be read in support of the directions as framed in the impugned order of 20 September 2012. Rule 27 is extracted herein below:- “27. Relaxation from the Conditions of Service:- Where the State Government 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, notwithstanding anything contained in the rules applicable to the case, by order dispense with or relax the requirements 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.” 9. According to Sri Nandan by way of the directions as framed in the impugned order of 20 September 2012, the entire construct of Rule 5 has been unsettled and various ineligible Senior Clerks were ultimately included in the field of eligibility as a consequence of which the recommendation of the Departmental Promotion Committee as framed on 14 August 2012 could not be given effect to. 10. Refuting those submission, learned Standing Counsel submitted that the State bearing in mind the recommendation of the Excise Commissioner and on finding that requisite number of Senior Clerks were not available was clearly justified in framing the directions as contained in the order dated 20 September 2012. According to the learned Standing Counsel the power as conferred by Rule 27 was validly exercised. 11. Before proceeding to deal with the rival submissions, it would also be relevant to bear in mind the provisions made in Rule 16, which envisages promotion being effected by the Committee on the relative assessment of the suitability of candidates on the basis of their service records. The Selection Committee was also granted the discretion, if thought necessary, to interview candidates. 12. The Selection Committee was also granted the discretion, if thought necessary, to interview candidates. 12. Having noticed the rival submissions and the statutory regime which prevailed and governed, the Court finds substance in the submission advanced by Sri Nandan. The power of relaxation as conferred by Section 27 is liable to be construed bearing in mind the language employed therein. At the outset it is evidently liable to be invoked where the particular rule or provision causes “.. undue hardship in any particular case”. The second key or means of guidance which is placed on the exercise of power under the rule is evidenced from the use of the phrase “in a just and equitable manner”. 13. The impugned action fundamentally rests on the recommendation of the Excise Commissioner which in turn was based upon the Department noting that only 5 Senior Clerks were falling within the zone of consideration. While it may have been open to the State Government on a fundamental plane to relax the condition of 10 years of qualifying service, it clearly could not have been exercised in a manner which completely amended the rule of eligibility itself. As is manifest, the rule mandated the inclusion of only such Senior Clerks who had completed 10 years of service. It did not envisage the inclusion of Senior Clerks who had cumulatively put in 15 years of service in the cadre of Senior and Junior Clerks. A power of relaxation cannot be employed as a tool or means to completely amend the intrinsic character or content of a statutory provision. If the power to relax were to be construed in such a fashion, it would assume the character of a power to amend. The power to amend a statutory rule is clearly and must in law be held to be distinct from a power to relax. 14. The second reason why the Court finds itself unable to sustain the impugned action rests on the use of the phrase “in a just and equitable manner”. The expression as used in the particular rule clearly bids the respondents to balance and bear in mind the competing rights and expectations of constituents of two separate cadres, namely, Senior and Junior Clerks. The power to relax consequently could not have been exercised in a manner that completely annulled or annihilated the right of Junior Clerks to be considered for promotion. The power to relax consequently could not have been exercised in a manner that completely annulled or annihilated the right of Junior Clerks to be considered for promotion. Viewed in that light it is evident that the power to relax as conferred by Rule 27 was employed in a manner which completely effaced the right of consideration of Junior Clerks. The Court finds itself unable to recognise Rule 27 as extending to the framing of directions as contained in the impugned communication of the State Government. The impugned communication and the consequential decisions taken by the respondents thus cannot be sustained. 15. The Court notes that the petitioner does not seek quashing of the ultimate promotions which were effected. In that sense the promotion accorded to individuals shall remain unaffected. However, that does not detract from the right of the petitioner for being accorded notional promotion in light of the recommendations as framed by the Departmental Promotion Committee. 16. Accordingly, the instant writ petition is allowed. The impugned stipulation as contained in the Government Order of 20 September 2012 is quashed. The Court also sets aside the order dated 26 September 2012 by which the recommendations of the Departmental Promotion Committee were annulled insofar as the present petitioner is concerned. The Court also sets aside the order dated 28 December 2012 by which the claim of the petitioner was rejected by the Excise Commissioner. The respondents are consequently commanded to consider the recommendations of the Departmental Promotion Committee as formulated on 14 August 2012 and to consider the grant of notional promotion to the petitioner on the post of Excise Inspector with effect from 14 August 2012.