K. RAMAMOORTHY,j. ( 1 ) THE petitioner, who was approved for promotion to the rank of acting Colonel iithe Number Three Selection Board meeting held on the 9th of November, 1987, wasnot actually given the promotion till he attained the age of superannuation on the 30tlof April, 1988. Hence the petitioner, after his statutory complaint was rejectedpresented the writ petition praying for the following reliefs:- "the petitioner therefore prays that this Hon ble Court be pleased to:- (a) interfere in the matter as a court of equity and issue a writ of mandamus orany other writ, order or direction in the nature of mandamus directing therespondents to grant the rank of Acting Col. to the petitioner with effect fromjuly, 1987 i. e. the date when his batchmates were promoted to the post ofcolonel on the result of the Board held in March, 1987 and to grant thepetitioner pay and allowances with effect from that date and consequently theretirement and pensionary benefits attached to the post of Colonel. " ( 2 ) THE facts, in brief, necessary for the appreciation of the point raised by thpetitioner could be narrated thus:on the 10th of May, 1964, the petitioner was commissioned into the Indiaarmy. After 19 years of service, in or about 1983, he was approved for the rank selection grade Colonel. On the 15th of July, 1985, he was promoted to the rank of LColonel. His next higher rank is Colonel and he was to be considered for promotioto the rank of acting Colonel which would entitle to him the pensionary benefit in therank of Colonel. On the 14th of. November, 1986, a communication was sent to allconcerned that Number Three Selection Board would be held and directed initiationof ACRs. The communication dated 17. 11. 1986 wherein the signal issued on14. 11. 1986 was sent would read as undergo THREE SELECTION BOARD FOR LT. COL. 1967 1. A Copy of HQ 51 Sub Area Sig No. A-2089 dated 14 Nov 86 is fwdherewith for info and necessary action. Sd/- (V. Verma)Col. Adm Comdt CI-1. (Copy of HQ 51 Sub Area Signal No :a-2089 dated 14 Nov. 86)NO. 11. 1986 was sent would read as undergo THREE SELECTION BOARD FOR LT. COL. 1967 1. A Copy of HQ 51 Sub Area Sig No. A-2089 dated 14 Nov 86 is fwdherewith for info and necessary action. Sd/- (V. Verma)Col. Adm Comdt CI-1. (Copy of HQ 51 Sub Area Signal No :a-2089 dated 14 Nov. 86)NO. THREE SELECTION BOARD FOR LT COL 1967 SENIORITY GENERALCADRE AND EQUIVALENT BATCHES OTHER ARMS AND SERVICES (.)REF INDARMY LETTER 32301/34/p/ms4 COORD OF 21 JUN 86 (.) FIRSTLY (.) BOARD IN RESPECT ALL AFFECTED OFFRS TO BE INITIATED AS ON01 JAN 87 (.) ACR TO REACH INDARMY MS BRANCH BY 15 (.) THIRDLYDETAILED LETTER CONTAINING MODALITIES FOR RENDIATION SPECIALCONFIDENTIAL REPORTS FOLLOWS. Relevant extract of Army Headquarter letter No. 32301/34/p - MS4/coorddated 21 Jan 86 addressed to all Headquarter Commands. 1. As a result of upgradation of the units to Col s Comd is also to maintain ayoung age profile of the commanding offers. It has been decided to screenlt. Cols of 1966 and 67 seniority (In the General Cadre and equivalentbatches from other arms and services) during Jul 86 and Dec 86 Mar 87respectively by calling for special ACRS. Details are given in the succeedingparagraphs. No. 2sd-July86xxxxxxxxx. xxxxxxxxxno. 3 SB Dee 86 -Mar 876. Offrs due for spl confidential reports. This bd. will screen offrs of theseniority as given below:- (a) Fresh cases. (i) Armd Corps, Arty - 1967and Inf322 (ii) Engineers and - 1965signals (iii) All other - 1965services (b) Review Cases. All offrs who stand deferred, withdrawn of rejected by thejul 86 Board. "xxxxxxxxxxsd/-Bring. Dy. MS (C) ( 3 ) ON the 6th of December, 1986, the petitioner submitted his special ACR and itwas to be forwarded to the HQ 101 Area for being put up before the Selection Board. On the 4th of March, 1987, an intimation was given that Number Three Selectionboard would be held in July, 1987 and, therefore, there was no need for any specialacr. The communication reads as under:- "spl ACR FOR NUMBER THREE SELECTION BOARD LT COL TO COL (.)REF YOUR Q 5837 FEB 12 (.) NUMBER THREE SELECTION BOARD NOWBEING HELD DURING JUL 87 HENCE SPECIAL ACR IS NOT REQUIRED TOBE INITIATED AS PER INDARMY SIGNAL NO. The communication reads as under:- "spl ACR FOR NUMBER THREE SELECTION BOARD LT COL TO COL (.)REF YOUR Q 5837 FEB 12 (.) NUMBER THREE SELECTION BOARD NOWBEING HELD DURING JUL 87 HENCE SPECIAL ACR IS NOT REQUIRED TOBE INITIATED AS PER INDARMY SIGNAL NO. 390869/ms4 COORD 28 NOV86 (.)ABOVE DECISION ALREADY COMMUNICATED TO ALL FMNS AND UNITSVIDE OUR SIG A-1028 OF 02 DEC 86 (.) SPL ACR RECEIVED AT THIS HI ISBEING FWD TO CDR 51 SUB AREA FOR FURTHER DISPOSAL 51 SUBAREA ONLY (.) CONNECT OUR A-1029 OF 02 DEC. 86 (.)ACRIN RESPECTOF IC-22152-F LT COL KEHARI SINGH RECEIVED AT THIS HQ IS BEINGFWD SEPARATELY. "but, as a matter of fact, the Number Three Selection Board met between the 30th ofmarch, 1987 to the 3rd of April, 1987. The case of the petitioner was deferred. If thespecial ACRs had been forwarded to the Selection Board, the petitioner would nothave been put to any prejudice. ( 4 ) THERE is also provision for waiver in case of any shortfall and the Armyheadquarters had issued letter on the 24th of April, 1987 in this behalf. The shortfallin the case of the petitioner was 1 month and 14 days. As per the letter of theheadquarters, the shortfall upto three months could be waived by Military Secretaryand on the recommendation of the officer concerned, the Military Secretary couldwaive the shortfall and the case of the Lt. Colonel concerned could be placed beforethe Selection Board for consideration for promotion to the post of Colonel. The letterdated 24. 4. 1987 reads as under:- CALCULATION OF ADEQUATELY EXERCISED PERIOD AND GRANTINGOF WAIVER IN SHORTFALL OF ADEQUATELY EXERCISED PERIOD. 5. AS ABOVE xxxxxxxxxxxxxxxxxxxxxxgrant of Waivers6. Waiver in the shortfall in the shortfall in AE periods are granted toofficers who do not have the requisite minimum mandator period as laiddown subject to the following :- (a) It is not in the interest of the management to revert the officer to criteria/command appointment to earn the balance of reports causing the shortfall. (b) The officers consent to be given a definite grading by the board with theshortfall in AE period, has been obtained certificate as per specimen placedat Appex b of Army Headquarters letter referred in Para 3 above. (b) The officers consent to be given a definite grading by the board with theshortfall in AE period, has been obtained certificate as per specimen placedat Appex b of Army Headquarters letter referred in Para 3 above. (e) The officerhas served in an appointment for more than requisite AEperiod, but has not been able to earn the report due to condition stipulated inpara 27 of the letter ibid. 7. Waiver in the shortfall of AE. periods will normally, not be granted to thefollowing:- (a) Those serving in a criteria appointments after the cut of report of thebatch. (b) Those who have rendered adverse/willingness certificate for posting/reversing to a non-criteria appointment of proceeding on study leave. Procedure8. To streamline the procedure of granting waivers, the following has beenformulated:- (a) Shortfall upto 15 days - An officer with a shortfall of 15 days of less will beconsidered AE and Will be placed before the Selection Board for definitegrading on his initial consideration. No consent of the office would berequired. (b) Shortfall of period exceeding 16 and upto six months: The case of grant of. waiver, whether initiated by the officer to the controlling sections, will be, accompanied by the consent of the officer in form of a willingness certificateas per specimen placed at Appx a to Army headquarters letter No. 32666/p/ms5b dated 06 May, 86. The case will be processed by Col. MS5b andsanction for grant of waiver will be obtained as follows:- (i) MS - Upto 3 months (ii) COAS - Upto 6 months (c) Cases where the shortfall exceeds more than six months will invariably notbe granted any waiver. However, on the merit of the case, the sanction maybe obtained from the COAS only in exceptional cases or special report maybe called for as directed by the MS. Conclusion9. xxxxxxxxx" 4. Admittedly, this procedure was not followed and no opportunity was given to thepetitioner to request for waiver. The petitioner, it has to be noticed here, had receivedcommendation Card from GOC-in-C Eastern Command on the 15th of August,1987 having regard to his meritorious service. Therefore, between 15. 7. 1985 tomarch, 1987, the petitioner s service was good is a fact which cannot be disputed. The petitioner, it has to be noticed here, had receivedcommendation Card from GOC-in-C Eastern Command on the 15th of August,1987 having regard to his meritorious service. Therefore, between 15. 7. 1985 tomarch, 1987, the petitioner s service was good is a fact which cannot be disputed. ( 5 ) ON the 10th of July, 1987, the petitioner was informed by the Military Secretaryas to why the petitioner s case was not considered by the Number Three Selectionboard which met between the 30th of March, 1987 to the 3rd of April, 1987. The letterreads as under :- RESULTNO. 3 SELECTION BOARD HELD FROM30 MAR TO 03 APR 871. Defer for want of adequate report in the rank of Lt. Col. 2. Type of Case : Fresh 19653. Last ACR Considered 7/85-5/864. Your case will be placed before the next appropriate Selection Boardwith fresh material on record. "it is clear that the petitioner was deprived of his chance of being considered by thecallous indifference of the respondents. ( 6 ) ON the 17th of October, 1987, the petitioner wrote to the Military Secretary, Armyheadquarters, New Delhi stating that Number Three Selection Board would be meton the 9th of November, 1987 apd in the event of petitioner s name being approvedfor promotion, the order of promotion would have to be issued on or before the 31st ofdecember, 1987 and the petitioner would have got pensionary and resettlementbenefits as he was to retire on the 30th of April, 1988. The letter reads as under:- "1. . With due respect I wish to submit the following for your kind consideration. 2. I was commissioned into the Army on 10/05/1964. After 19 years ofservice, I was approved for the rank of Selection Grade Lt. Col. However, afterthe approval I had to wait for 2 years and 5 months for getting promoted tothe rank of Lt. Col. due to stagnation in the service and for want of vacancy. Iwas thus promoted to the rank of Lt. Col. on 1st Jul 85. 3. I am commanding 825 ASC Bn (Air Maint) since 15 Jul 85. Throughoutmy service and more so in my present rank I have served with devotion,utmost sincerity, high sense of loyalty and honesty. In recognition of mymeritorious service, j am the proud recipient of GOC-in-C Easter Command scommendation Card, on 15aug, 1987. 4. Col. on 1st Jul 85. 3. I am commanding 825 ASC Bn (Air Maint) since 15 Jul 85. Throughoutmy service and more so in my present rank I have served with devotion,utmost sincerity, high sense of loyalty and honesty. In recognition of mymeritorious service, j am the proud recipient of GOC-in-C Easter Command scommendation Card, on 15aug, 1987. 4. My batch of officers in ASC were considered for promotion to the rank ofcolonel during Mar 87. But my case was deferred for want of adequate reportin the rank of Lt. Col, vide Army Headquarters letter No. 365/0/asc/ms5bdated 10 Jul 87. In this connection it is mentioned here that HQ 51 Sub Areasing No. A2089 dated 14 Nov 86 had directed that No. 3 Selection Board forlt. Col. seniority general cadre and equivalent batches other arms serviceswill be held and ACR in respect of all affected officers have to be initiated ason 1st Jan 87 and also to reach Army Headquarters Ms Branch by 15 Feb 87 (Army headquarters letter No. 32301/34/p/ms4 Coord. dt. 21 Jan 86 refers ). Accordingly, I had submitted my special ACR to HQ 51 Sub Area for onwardtransmission vide letter No. 220/st2 dated 06 Dec. 86. My special ACR wasforwarded duly initiated by Cdr. 51 Sub Area to HQ 101 Area. However, HQ101 Area on receipt of my special ACR intimated vide their Sig. No. A-1089dated 04 Mar 87 that No. 3 Selection Board would now be held during July 87,hence special ACR not required to be fwd to Army Headquarters. Whereasno. 3 Selection board for my batch of officers in ASC of 1965 seniority washeld during Mr. 87. Had this special ACR been forwarded to Army headquarters-my case would not have been deferred for want of ACR and I would have notsuffered for my pensionary and retirement benefits. 5. Further, had the fact of the shortfall in being adequately exercised beenknown to me, I would have approached you for waiver as per instructionscontained in Army Headquarters letter No. 32666/waiver/175/5b dated 24mar 1987 as the shortfall period of my ACR was only one month and 14 days. But the facts were known to me only when I received the letter of deferment. 6. Thepromotion board for my next rank is now being held on 9th Nov. 87. But the facts were known to me only when I received the letter of deferment. 6. Thepromotion board for my next rank is now being held on 9th Nov. 87. In case I stand approved for promotion to the rank of Colonel, I am not likelyto get pensionary and resettlement benefits if I am not promoted before 31stdecember, 87 due to my retirement with in next four months i. e. 30 Aparil 88. 7. May I therefore, request you to consider my case as a very special caseand obtain sanction of Government of India in my case at the earliest afterfinalisation of promotion board proceedings as that I may get promotion by31 Dec. 87. This will have great psychological satisfaction to a soldier whohas sincerely devoted to the duty throughout his service and never in wholeservice have put up any type of request for anything on any groundwhatsoever. 8. Hope this will get your sympathetic consideration. " ( 7 ) NUMBER Three Selection Board met on the 9th of November, 1987 and thepetitioner was found to be fit for promotion to the rank of Colonel. But in spite of histetter dated 17. 10. 1987, no orders were passed by the respondent. On the 17th onmarch, 1988, the Military Secretary wrote to the petitioner in the following terms:- "resultn0. 3 SELECTION BOARD HELD FROM09t020nov871. Approved for promotion. 2. Type of Case: Fresh (Defer/withdrawn) 1965 batch. 3. Last ACR Considered 86/87. . 4. Promotion will be subject to continued satisfactory performance andremaining in acceptable medical classification. " ( 8 ) THE respondent had taken four months time to implement the decision ofnumber Three Selection Board. On the 19th of March, 1988 a signal was issuedgranting local rank of Colonel to the petitioner. The same reads as under:- "ao 139/74 (.) approval MS accorded for grant of local rk col to IC-22151lt. Col. KEHASRI SINGH comma CO 825 ASC BN (AM) for period from apr 01to Apr 30. " ( 9 ) ON the 11th of April, 1988, the petitioner sent his statutory complaint which readsas under:- INTRODUCTION1. This statutory complaint is made under the provision of Army Act Section27 and Regulations for the Army (Revised Edition) 1962, para 361 asamended vide CS No. 232/k/78. BACKGROUND OF THE CASE2. I belong to 1965 batch of ASC Officers and was promoted to the rank oflt. Colonel on 15 Jul. 85. This statutory complaint is made under the provision of Army Act Section27 and Regulations for the Army (Revised Edition) 1962, para 361 asamended vide CS No. 232/k/78. BACKGROUND OF THE CASE2. I belong to 1965 batch of ASC Officers and was promoted to the rank oflt. Colonel on 15 Jul. 85. My batch of Officers in ASC were considered forpromotion to the rank of Colonel during Mar 87. But I was deferred forconsideration for promotion due to shortfall in adequately exercised period inthe rank of Lt. Colonel as intimated to me vide Army Headquarters letter No. 36510/asc/ms5b dated 10 Jul 87 (copy attached as per appendix a ). Shortfall period of my adequately exercised was only one month and 14 days. Netither this period was waived at the time the selection board was held nor Iwas informed so that I would have approached competent authorities forwaiver as per instructions contained in Army headquarters letter No. 32666/waiver/ms5b dated 24 Apr 87 (copy attached as per annedix b ). That factswere known to me only when I received the letter intimating my deferment. Incase I was approved for promotion to the rank of Colonel in the Selectionboard held in March, 87, I would not only have benefited for grant ofpromotion, pay and allowances but also could have got pensionary andresettlement benefits. I am due for superannuation on 30 Apr 88 (AN) oncompletion of 52 years of age. Due to the existing rules and regulations, Ihave been debarred from entitlement of these benefits for no fault of mine. FACTS OF THE CASE3. I was commissioned in ASC on 10 May 64. As I was emergencycommissioned officer. My seniority was adjusted to 21 Oct. 65 on beinggranted permanent commission. I was approved for promotion to the rank oflt. Colonel in Mar 83. After waiting for a period of 2 years and 3 months, I waspromoted to the rank of selection grade Lt. Col. My batch of officers belong to1965 seniority were considered for promotion to the rank of Colonel duringmar 87. I was also informed vide Army headquarters letter No. 32301/34/p/m54 Coord dated 21 Jan 86 (Copy attached as per appendix c ) that mycase would also be considered. Unfortunately my case was deferred forshortfall in adequately exercised period in the rank of Lt. Col vide Armyheadquarters Letter No. 36510/asc/ms5b dated 10 Jul 87 (Refer to Appendix a ). I was also informed vide Army headquarters letter No. 32301/34/p/m54 Coord dated 21 Jan 86 (Copy attached as per appendix c ) that mycase would also be considered. Unfortunately my case was deferred forshortfall in adequately exercised period in the rank of Lt. Col vide Armyheadquarters Letter No. 36510/asc/ms5b dated 10 Jul 87 (Refer to Appendix a ). The shortfall period of my adequately exercised was one month and 14days only. Neither this period of shortfall was waived at the time whenselection Board was held nor I was informed so that I would have approachedthe competent authority for waiver as per instructions contained in Armyheadquarters letter No. 32666/waiver/ms5b dated 24 Apr 87 (Refer toappendix b ). The special ACR was asked for vide headquarters 51 Subarea Signal No. A 2089 dated 14 Nov. 86 (Copy attached as per Appendix d ), Accordingly, the same was initiated and forwarded to Headquarters 101area. I was thereafter intimated by Headquaters 101 Area that the specialacr is no longer required since the promotion Board is now being held injuly 87, vide Headquarters 101 Area Signal No. A 1089 dated 04 Mar 87 (Copy Attached as per Appendix e ). Contrary to this information the Boardwas held in Mar 87, as per earlier. decision on the authority of which thespecial ACR was called for. I was, therefore, deferred for selection due to nofault of mine. I submit that I was wronged on two counts as under :- (a) Normally shortfall in adequately exercised utpo a period of 3 months iswaived by Military Secretary. However in my case the shortfall of one monthand 14 days was not waived and neither I was informed so that I could takecorrective measure. (b) Though special ACR was initiated but was not considered due to thereasons not known to me. I feel this special ACR could have at least beenforwarded to Military Secretary Branch for consideration. 4. The result of selection board No. 3 held in Mar 87 was out by 01 July 87. Since I was already working against a vacancy of Colonel as Officercommanding 825 ASC Battalion (Air Maintenance) Type b , I would havebeen promoted in situation thus entitling me for full pensionary benefits as Iwould have served for 10 months as a Colonel. 5. The fresh Selection Board No. 3 for deferred cases of 1965 seniority ofasc Officers was held on 09 Nov. 87. 5. The fresh Selection Board No. 3 for deferred cases of 1965 seniority ofasc Officers was held on 09 Nov. 87. Keeping in mind that the result of thisboard might be delayed I had submitted an application to Military Secretary,army Headquarters, requesting that since I am retiring on 30 Apr 88, myresult may be cleared before 31 Dec. 87, to obtain partial pensionary andresettlement benefits. Unfortunately nothing was heard regarding the actionon this application submitted vide 22152/ks/personal dated 17 Oct 87 (Copyattached as per Appendix f ). The result of No. 3 Board held in Novemberhas been out in 3rd week of March 88. Though I have been approved videarmy Headquarters letter No. 36510/asc/ms5b dated 17 Mar. 88 (Copyattached as per Appendix c ) and given local rank of Colonel vide Armyheadquarters Signal No. 387542/ms1 dated 19 Mar. 88 (Copy attached as- per Appendix m ) yet I have been deprived of all pensionary benefit. 6. Since I have been debarred from pensionary benefit of the rank ofcolonel for no fault of mine, it is submitted that I may be given the benefits ofrank of Colonel. I have been working against the vacancy of Colonel since itsupgradation in defacto and acting as a Colonel. This may kindly be givensympathetic consideration to permit me to draw all pensionary benefits ascolonel. INTRODUCTION7. In vie of the foregoing, it is submitted that I was not promoted to the rankof Colone! at the appropriate time that is 01 jul 87, whereas I was qualified toassume this rank on this date. This lacuna occurred due to proceduraloversight at higher headquarters and conditions beyond my control. 8. It is, therefore, prayed that:- (a) I may please be given seniority in the rank of acting Colonel with effectfrom 01 Jul 87, when my batch of officers were considered for the same and Iwas deferred because the special ACR asked upon me was not forwarded byheadquarters 101 Area possibly under instructions from higher authoritiesthat promotion board shall be held on said date whereas the same was heldon the same date. (b) The benefit of waiver to cover the short fall in the adequately exercisedperiod should have been granted to me by Military Secretary under theexisting provision on the subject. 9. (b) The benefit of waiver to cover the short fall in the adequately exercisedperiod should have been granted to me by Military Secretary under theexisting provision on the subject. 9. I, therefore, pray that I may be granted seniority in the rank of actingcolonel with effect from 01 Jul 87, as it will have lasting beneficiary effect onmy pension and resettlement. " ( 10 ) IN the statutory complaint, the petitioner had prayed for his being granted therank of acting Colonel w. e. f. 1. 7. 1987. There was no reply from the Governmentindia. ( 11 ) ON the 16th of November, 1988, the petitioner issued notice, through counsel, tothe Chief of the Army Staff. The notice reads as under :- "under instructions from my client Col. Kehari Singh (Retd.) No. lc-22152-F, Ihave to serve you with the following registered AD notice which I hereby do:-1. That my said client was commissioned into the Army on 10/05/1964. After 19 years of service, he was approved for the rank of Selection Grade Lt. Colonel but for want of vacancy he was promoted to the rank of Lt. Colonel on 15/07/1985. 2. That my said client has throughout served the Army with devotion,sincerity, high sense of loyalty and honesty and in recognition of his meritoriousservices, he was awarded by GOC-in-C Eastern Command s Commendationcards two times i. e. on 15/08/1987 and 15/08/1988. 3. That the batch of officers in ASC to which my client belongs wereconsidered for promotion to the rank of Colonel during March, 1987 andsince my client was also due to be considered along with them special ACRwas initiated vide Headquarters 51 Sub Area Signal No. A 2889 dated 14/11/1986 and forwarded to headquarters 101 Area. If this specialacr had been furnished in time, my client would have been considered forpromotion in March 1987 but unfortunately for reasons best known to theofficers concerned, my client was informed vide Headquarters 101 Areasignal No. A 1089 dated 4. 3. 1987 that the Special ACR was no longerrequired since the promotion Board was being held in July 1987. If this specialacr had been furnished in time, my client would have been considered forpromotion in March 1987 but unfortunately for reasons best known to theofficers concerned, my client was informed vide Headquarters 101 Areasignal No. A 1089 dated 4. 3. 1987 that the Special ACR was no longerrequired since the promotion Board was being held in July 1987. In spite ofthis communication received by my client, the special Board was held inmarch 1987 and since the special ACR had not been furnished, the promotionof my client was deferred to the next board and my client was intimatedaccordingly vide No. 36-510/asc/ms5b dated 10/07/1987 wherein hewas informed as under :-"defer for want of adequate report in the rank of Lt. Col. "from this remark it is self-evident that if adequate report in the form ofspecial Acr as initiated earlier had been furnished and made available to theboard held in March, 1987, there was every possibility of my client havingbeen promoted as Colonel but he was deprived of this only because thespecial ACR had not been furnished even though initiated earlier. My clienthas thus suffered only because the special ACR on him, even thoughinitiated earlier, was not furnished to the Board only because the officersconcerned felt that there was no necessity of doing so since the Board was tobe held in July, 1987, whereas it was actually held in March 1987. Thus myclient was unnecessary prejudiced for no fault of his. 4. The requirement of adequate report in the form of ACR is twelve months. My client had already earned ACRas Lt. Colonel for 10 months and 15 daysw. e. f. 15/07/1985 to 31/05/1986. As such the shortfall was of one monthand 15 days only. My client s special report initiated vide HQ 51 Sub Areasignal No. A 2089 dated 14/11/1986 would have met the requirement,if it would have been considered by the Board held in the month of March1987. Unfortunately the report was not produced to the Board for consideration. Also my client was not informed by the concerned officer about the shortfall inthis ACR. Had my client been informed he would have applied for the waiverof shortfall of adequate period for which Military Secretary has beenempowered to waive off shortfall period upto three months. Unfortunately myclient was kept in dark due to which he was deprived of the followingbenefits:- (a) Promotion to the rank of Col. Had my client been informed he would have applied for the waiverof shortfall of adequate period for which Military Secretary has beenempowered to waive off shortfall period upto three months. Unfortunately myclient was kept in dark due to which he was deprived of the followingbenefits:- (a) Promotion to the rank of Col. (b) Pay and allowances (e) Pensionary benefits. (d) Resettlement5. That thereafter the fresh Selection Board for deferred cases of 1965batch of ASC officers was held on9/11/1987. Keeping in mind thatthe result of this board might be delayed, my client had submitted anapplication to Military Secretary, Army headquarters, requesting that sincehe was retiring on 30/04/1988, his result may be declared before 31stdec. 1987 so that he could avail of pensionary and resettlement benefits. Unfortunately no action was taken on this application of my client and theresult was declared only in the third week of March 1988 and though my clientwas approved for promotion, he was given local rank of Col. Since he was toretire on 30/04/1988. Thus it would appear that once again my client hassuffered because his result was not declared before 31. 12. 1987. Had theresult of my client would have been entitled to pensionary benefits. 6. On behalf of aforesaid client of mine I am to state that he was suffered forno fault of his, just because his special ACR, although initiated was notfurnished to the Board on the plea the it was not required since the Boardwas to be held in July 1987 although it was actually held in March, 1987. Again- my client suffered because the result of the next Board held on9. 11. 1987 was not declared before 31. 12. 1987. There is no justification formy client being deprived of the pensionary benefits in this manner for no faultof his when he has been as a matter of fact approved for promotion by theboard. It is patent that if the special ACR had been furnished to the Boardheld in March 1987, my client s promotion would not have been deferred andhe would have been promoted w. e. f. 1/07/1987. It is thus in the interest ofequity, justice and fair play that my client be promoted as acting Colonelw. e. f. 1. 7. 1987 so that he is entitled to all pensionary and resettlementbenefits. 7. It is thus in the interest ofequity, justice and fair play that my client be promoted as acting Colonelw. e. f. 1. 7. 1987 so that he is entitled to all pensionary and resettlementbenefits. 7. On behalf of my client I am to further state that even though my clientsent his statutory complaint vide his No. 224/st2 dated 114. 1988 to theheadquarters 41 Sub Area C/o 99 APO with copy to the Complaint Analysisbureau, Chief of Army Staff, South Block, New Delhi, he has heard nothing inreply. 8. This is, therefore, to request you to see that his statutory complaint isfavorably considered and he is granted the relief to which he is entitled inequity and be not made to suffer for no fault of his, so that he is not compelledto seek justice through the process of law. " ( 12 ) ON the 1st of March, 1989, the Government of India passed the following order :- "the Central Government, after considering the Statutory Complaint dated 11/04/1988, submitted by Colonel Kehari Singh (IC22152) ASC, againstdeferment of his case for promotion to the rank of A/colonel in April, 1987, issatisfied that no injustice has been done to the officer. His complaint is,therefore, rejected. By order and in the name of president. " ( 13 ) BY letter dated the 5th of April, 1989, that was communicated to the petitionerand the letter dated 5th of April, 1989 reads as under:- 1. One copy of the Central Government Order No. 36501/44/asc/335/ms5c/1283/d (MS) dt 01 Mar 89, rejecting the statutory complaint dated 11apr 88 submitted by you against deferment of the case for promotion to therank of A/col in Apr 87 is forwarded herewith. 2. Please acknowledge receipt of the letter. " ( 14 ) THE case of the petitioner is that even though the petitioner had renderedunblemished service, his case was completely ignored and he must have beengranted the rank of acting Colonel w. e. f. 1. 7. 1987 and the respondents by their actshad deprived the petitioner of his rank and consequential benefits and the respondentshad acted illegally, irrationally and unreasonably, and, therefore, the petitioner isentitled to the reliefs prayed for by him. ( 15 ) IN the counter-affidavit, without disputing the facts stated by the petitioner, it isstated: "in case of petitioner it is just bad luck that he had to retire as Lt. Col. ( 15 ) IN the counter-affidavit, without disputing the facts stated by the petitioner, it isstated: "in case of petitioner it is just bad luck that he had to retire as Lt. Col. evenafter approval for promotion to the rank of A/col, due to his superannuationin the age of 52. Though he was granted local rank of Col. for a month prior tohis retirement, he cannot get the pensionary benefits attached to the rank ofcol. as per existing rules. " ( 16 ) IT is further stated in the counter-affidavit; "in reply to para 4 it is submitted that the officers of 1965 batch to which thepetitioner belongs were considered by No. 3 Selection Board in April, 1987with Annual Confidential Reports (ACRs) upto 1985-86 as cut off report. Thepetitioner took over the command of 825 ASC Bn on 15/07/1985. Hecould not complete the mandatory period of 12 months. Adequately exercised (AE) period before he was considered for promotion in April, 1987 and thus,he was rightly deferred by the selection Board. Waiver of any shortfall in thestipulated 12 months AE period is not admissible under the rules. Thepetitioner was one of the 15 officers who were deferred in April, 1987selection Board. Due to the management constraints, his case could not betaken up as a special case and he was considered for promotion in the nextboard held in November, 1987. " ( 17 ) WITH reference to the fact that there was a communication dated 14. 11. 1986asking for special ACR, the stand taken in the counter is: "in reply to para 5 of the petition it is submitted that at no stage Army HQasked HQ 101 Area for the Special ACR in respect of the petitioner. However,as a routine a signal was sent seeking special CR during November, 1986covering the period upto 01 Jan. , 1987 but subsequently the same has beencancelled.- The cancellation of the earlier instructions of seeking special CRhas no relevance in the petitioner s case as in any case his batch was only tobe considered in Apr. 87 with the report upto 85-86 as cut of report which arein any case available with Army HQ for screening the officers in April, 1987selection Board. 87 with the report upto 85-86 as cut of report which arein any case available with Army HQ for screening the officers in April, 1987selection Board. " ( 18 ) THE Number Three Selection Board met between the 30th of March, 1987 to the3rd of April, 1987 is a fact admitted by the respondents and what is stated inparagraph 5 of the counter is not at all correct. ( 19 ) MR. NARENDER Kumar Jaggi, the learned counsel for the petitioner, submitted thatthe petitioner who rendered meritorious service had been deprived of his duepromotion and retrial benefits, and the action of the respondents is violative of Article14 of the Constitution of India. The respondents had acted in an arbitrary fashion. Ifsufficient opportunity had been given to the petitioner as per the letter dated 24. 3. 1987issued by the Army Headquarters, his case would have been put up before thenumber Three Selection Board in March, 1987, and having been approved forpromotion in November, 1987 and when the petitioner had made a special requeston the 17th of October, 1987, the respondents had not cared to pass orders. Theteamed counsel submitted that the petitioner should have been promoted and grantedthe rank of acting Colonel w. e. f. 1. 7. 1987. That is the date on which the petitioner sbatchmates were promoted on the basis of the result of the Number Three Selectionborad held in March, 1987. ( 20 ) MR. Jayant Bhushan, the learned counsel for the respondents, submitted that inthe Selection Board meeting held in April, 1987, the case of 15 officers, including thepetitioner, had been deferred for lack of adequate report. One must have worked fora period of 12 months but the petitioner had worked only for ten months. In theselection Board meeting held in November, 1987, the case of the officers had beencleared but the respondents could pass orders only in March, 1988 due to. administrative reasons. The learned counsel submitted that it is not disputed that asper the existing rules, the officer concerned should have rendered at least fourmonths service in the promotion post and as the petitioner was to retire on the 30th ofapril, 1988, in March, 1988 when the decision of the Selection Board was approved,the petitioner could not be promoted. Therefore, according to the Seamed counset,the petitioner did not get the rank of acting Colonel. Therefore, according to the Seamed counset,the petitioner did not get the rank of acting Colonel. ( 21 ) IN my view, the respondents had acted illegally not putting the case of thepetitioner before the Number Three Selection Board held in March, 1987 and therespondents ought to have followed the letter dated 24. 4. 1987 with reference toshortfall and the respondents ought to have issued orders approving the decision ofthe Selection Board held in November, 1987. The fact that the petitioner had renderedmeritorious service is not disputed by the respondents. The non-consideration of thecase of the petitioner by the Number Three Selection Board held in March, 1987 wasdue to the arbitrary action of the respondents. Having issued the communicationdated 14th of November, 1986, the respondents had gone to the extent of saying thatnumber Three Selection Board could meet only in July, 1987 when as a matter of factthe Number Three Selection Board met in March, 1987 and it would show that therespondents had acted in an arbitrary fashion. If the petitioner had been consideredby the Number Three Selection Board in March, 1987, he would have been approvedbecause the petitioner satisfied the set criteria required for promotion. ( 22 ) THE stand taken in the counter that it was the bad luck of the petitioner wouldshow that the respondents having acted infringing the Fundamental Rights of thepetitioner, would try to force the petitioner to resign himself to the vicissitudes of life. The respondents had ignored that if they had acted in accordance with law, thepetitioner would have had his promotion in March, 1987 and he would be entitled tohis pension and retrial benefits. Having acted in an arbitrary way when the petitionerhas approached this Court under Article 226 of the Constitution of India, the answeris that owing to bad luck, the petitioner did not get his promotion. It is really some whatstrange that the respondents instead of owning the responsibility had taken a verycruel stand as if they could weird off the future of the officers. ( 23 ) IN my view the petitioner has made out a case for interference under Article 226of the Constitution of India. The writ petition, accordingly, stands allowed. ( 24 ) RESPONDENTS are directed to pass necessary orders granting the petitioner therank of acting Colonel with effect from July, 1987 and consequential retrial, pensionaryand resettlement benefits attached to the post of Colonel. The writ petition, accordingly, stands allowed. ( 24 ) RESPONDENTS are directed to pass necessary orders granting the petitioner therank of acting Colonel with effect from July, 1987 and consequential retrial, pensionaryand resettlement benefits attached to the post of Colonel. The respondent shall passorders in this behalf on or before the 31st of October, 1999. ( 25 ) THERE shall be no order as to costs.