Leila Seth ( 1 ) BY this writ petition the pethioner is praying for awrit of mandamus to direct the respondents to promote the petitioner as abrigadier with original seniority and permit him to continue to serve histenure till the age of 54 years. ( 2 ) THE relevant facts are not in dispute and are in a narrow compass. The petitioner has been in the employment of the Government of India,defence Services since 3/06/1956. He was promoted to the rank ofacting Colonel on 15th July, 1981 and got the substantive rank of Colonelwith effectf fom 1/07/1982. However, he was not placed in the selectlist for promotion to the rank of Brigadier despite the fact that his case wasconsidered as a fresh case in the year 1982, a first review in 1983 and asecond review in 1984. The reason apparently was because of certain entriesin his annual confidential reports. ( 3 ) IT is the admitted position that a Colonel in the Indian armyretires at 52 years of age and a Brigadier at 54 years. The petitioner wasborn in October, 1935 and from December, 1985 was serving as Deputycheif Signal Officer, Jammu and Kashmir, in the rank of Colonel. Inaccordance with a circular issued by the Army Headquarters on 5/02/1987, the petitioner was informed that be would be retiring with effect from3 1/10/1987. Soon thereafter, on 25/03/1987 he made astatutory complaint addressed to the Central Government with regard tohis having been superseded for the rank of Brigadier. ( 4 ) WE have perused the relevant original files which were producedin court and admittedly the said statutory complaint was received in Armyheadquarters on 24/04/1987. On 7/07/1987, the Chief of Armystaff made the following order after examining the statutory complaint : "1 direct expunction of the following from the ACRs of theofficer :- (a) ACR 77-78, ICR Jun 78-Nov. 78, ACR 78-79, complete assessment of the HTO. (b) ICR Jul. 81-Feb. 82, ACR 81-82 ACR 82-83. Complete assessment of the Head of the Arm. 2. Officer s case for promotion should be regulated. 3. Subject to the redress as given by me residual portion of thecomplaint is recommended to be rejected. " ( 5 ) THE case of the petitioner was then considered by the Selectionboard as a special review (fresh) He was approved for promotion. "by aletter dated 23/09/1987, written by Maj. 2. Officer s case for promotion should be regulated. 3. Subject to the redress as given by me residual portion of thecomplaint is recommended to be rejected. " ( 5 ) THE case of the petitioner was then considered by the Selectionboard as a special review (fresh) He was approved for promotion. "by aletter dated 23/09/1987, written by Maj. General A. Banerjee,army Headquarters, Military Secretary s Branch, he was informed of thepromotion. The letter reads : "i am glad to inform you that you have been approved for promotion to the acting rank of Brig. in the Corps of Signals on thespecial Review (fresh) consideration of your case. " ( 6 ) SINCE no actual promotion orders were issued, the petitioneraddressed another letter to the Central Government dated 15/10/1987. As no reply was forthcoming and time was running out, he filed thewrit petition in this Court on 26/10/1987. ( 7 ) ON 27/10/1987. this Counissued notice to the respondentsto show cause why rule nisi be not issued, and also made an exparte orderin view of the letter date (T 23/09/1987, abovementioned, restraining the respondents from giving effect to the letter dated 5/02/1987retiring the petitioner from service with effect from 31st October 1987. ( 8 ) ON 6/05/1988, Rule D. B was issued and, afterhearing, theinterim order made on 27/10/1987, was contniued. Subsequently, thehearing of the case was expedited. ( 9 ) AS above indicated the two basic prayers of the petitioner are,one, to be promoted as a Brigadier and continue to serve till the age of 54years and, two, be given his original seniority. ( 10 ) WITH regard to the second prayer pertaining to original senioritywe are not inclined to interfere as the petitioner filed a statutory complaintonly in March 1987 whereas be was admittedly superseded as far back as1982-1984 and has not indicated any satisfactory reason for the delay. ( 11 ) WE now take up the first prayer. The petitioner is informed thathe is approve for promotion but is not promoted. ( 12 ) FACED with their own letter of 23/09/1987, indicatingthat the petitioner has been approved for promotion to the acting rank ofbrigadier, Mr. Sat Pal, learned counsel for the respondents contends that thepetitioner cannot be promoted inview of Army Headquarters letter dated 10/04/1974. The petitioner is informed thathe is approve for promotion but is not promoted. ( 12 ) FACED with their own letter of 23/09/1987, indicatingthat the petitioner has been approved for promotion to the acting rank ofbrigadier, Mr. Sat Pal, learned counsel for the respondents contends that thepetitioner cannot be promoted inview of Army Headquarters letter dated 10/04/1974. ( 13 ) THE said letter pertains to the policy of promotion to higherranks of officers "on the verge of retirement" and reads : 1. THE policy so far has been not to Promote officers who are aboutto retire, to higher ranks, save in exceptional circumstances. 2. There have been representations that the above policy affectsofficers adversely, particularly in view of the provisions AI/s/70,according to which gratuity is calculated on the basis of pay oflast rank held. 3. The question has been reviewed, taking all pertinent factorsinto consideration, and it has now been decided that : (a) Officers will, as a general rule be promoted in their turn ifthey are able to serve in the new appointment in the higherrank for a minimum period of Jour months before proceedingon relirement/leave pending retirement. (b) Where an officer is not willing to move to a new station andchooses to forgo promotion, he may be allowed to do so (e) Exceptional cases will continue to be considered no merits. 4. It has further been decided, in pursuance of the above Policy,that officers, who come up for promotion to a higher rank whenthey have 4-10 months left for retirement, will be required togive an undertaking to the effect that they would be willing toforgo part or whole of their leave pending retirement as necessary,to enablethem to render effective service for minimum period of4 months in their new appointments, if promoted. " ( 14 ) MR. Sat Pal relying on this letter, submits that it is clear thatofficers canqot, as a general rule, be promoted if they cannot serve ill the newappointment in the higher rank fora minimum period of four monthsbefore proceeding on retirement. Since the petitioner was due to retire on 31/10/1987, he would not have the requisite four months in thehigher rank of Brigadier and could not be promoted. ( 15 ) MR. Bhasin, learned counssel for the petitioner, however, contendsthat the interpretation as suggested by Mr. Sat Pal is incorrect as this doesnot apply to acting rank. Since the petitioner was due to retire on 31/10/1987, he would not have the requisite four months in thehigher rank of Brigadier and could not be promoted. ( 15 ) MR. Bhasin, learned counssel for the petitioner, however, contendsthat the interpretation as suggested by Mr. Sat Pal is incorrect as this doesnot apply to acting rank. Be that as it may, in the present case, we feelit is not nccessary for us to go into the question of interpretation of thesaid provision as in the peculiar facts of this case, which we will indicateshortly, we think it is an exceptional and not a general case. ( 16 ) MR. Bhasin, learned counsel for the petitioner, submits that ifthe petitioners statutory complaint had been considered within the timeprescribed of 30 days (or even 45 days in exceptional circumstances) thepetitionslwould Have had four months in the higher rank and should havebeen promoted; that he cannot be penalised for the delay of the authorities. ( 17 ) REGULATION 361 (4) (b) of the Army Regulations, on which Mr. Bhasin relies, provices that where a statutory complaint "is addressed tothe Central Government or an authority at Army Headquarters", the Branchdepartment concerned "will ensure that under normal cirumstances thefinal orders of the authority so addressed are obtained within a period of30 days of its receipt at the Army Headquarters. Under exceptional circums-tances, this period may extend to 45 days. ( 18 ) IN the counter affidavit filed by the respondents, they have notdisputed that this Regulation applies to the petitioner. However, Mr. Satpal urges that the said Regulations have been amended and now it isregulation 364 which deals with she matter and the permissible time to betaken at Army Headquarters is 45 days. But in case of delay, "a reportexplaining in detail the reasons for delay will be forwarded to the nexthigher authority. ( 19 ) WE have perused the original files which were produced in Courtand we find there is no such report. Further, as already indicated above, thestatutory complaint was received in Army Headquarters on 24/04/1987and was dealt with finally by the Chief of Army Staff on 7/07/1987,which means that 74 days,. were taken from the date of receipt of thiscomplaint. If the said statutory complaint had been dealt with within thetime specified i e. 45 days. Further, as already indicated above, thestatutory complaint was received in Army Headquarters on 24/04/1987and was dealt with finally by the Chief of Army Staff on 7/07/1987,which means that 74 days,. were taken from the date of receipt of thiscomplaint. If the said statutory complaint had been dealt with within thetime specified i e. 45 days. It would have been dealt with before 8/06/1987 and there would have been sufficient time before the end of June 1987for the Selection Board to have held a special review (fresh ). Consequently,the petitioner, who was to retire on 31/10/1987, would have had morethan four months enabling him to serve in the higher rank for the minimumperiod. ( 20 ) SINCE we. have taken the period of 45 days, being the outerlimit in arriving at the above Indicated conclusion, it is not necessary foras to decide whether Regulation 361 (4) (b) or the amended Regulation 364applies to the petitioner because in either case he would have had anopportunity of serving for four months before his retirement in the higherrank. Consequently, we consider it an exceptional case in which thepetitioner deserves to be given the promotion of acting rank of Brigadier inthe Corps of Signals. ( 21 ) ON a perusal of the original files, it is apparent that the Chief of Army Staff had recommended relaxation of the four months rule, promotionto the acting rank of Brigadier and granting of an extension of service forthree months from 1/11/1987 upto 31/01/1988 so as toenable the petitioner to earn a confidential report in the acting rank ofbrigadier so that his case could be considered for promotion to thesubstantive rank of Brigadier. But the respondents did not accept therecommendation for fear of it creating a precedent resulting in numerouscases having to be considered. We need not comment on this matter, becauseas already indicated by us, we consider it an exceptional case in the facts andcircumstances outlined above. ( 22 ) THE petitioner, who would have retired in accordance with thecircular of Army Headquarters dated 5/02/1987, on 31st October, 1987, is fortunately still in service by virtue of the orders of this Court. Therespondents are directed to promote the petitioner in accordance with the letter dated 23/09/1987 and consider his case for promotion to thesubstantive rank of Brigadier in accordance with law and give him theconscquential reliefs. Therespondents are directed to promote the petitioner in accordance with the letter dated 23/09/1987 and consider his case for promotion to thesubstantive rank of Brigadier in accordance with law and give him theconscquential reliefs. ( 23 ) THE petition is partially allowed as above indicated, but in thefacts and circumstances of the case, we make no order as to costs.