JUDGMENT 1. - This special appeal is directed against the order of the learned Single Judge dated 30.10.1995 in S.B. Civil Writ Petition No. 103/1990 dismissing the writ petition of the appellant. 2. The appellant had filed the writ petition seeking direction to promote him to the rank of Subedar Major in the Indian Army and, further, restrain the respondents from discharging him from service before completing 28 years of service viz., 31.5.1990. 3. The case of the appellant is that on 8.1.1994 he was enrolled as Recruit Clerk in Indian Army. He reported for duty on 14.5.1962. In course of time, he was promoted as Naik with effect from 1.4.1963, Havildar with effect from 1.8.1969. Naib Subedar with effect from 30.12.1979 and Subedar with effect from 1.4.1983. He was selected for promotion to the rank of Subedar Major by the Departmental Promotion Committee (DPC) convened at the Army Service Corps (ASC) Centre South Bangalore between 7th-10th June, 1989. Sometime in November 1989, he came to know that persons junior to him were being promoted and he would not be promoted as Subedar Major. On 15.11.1989 he made representation followed by another representation on 28.11.1989. In the meantime a message dated 23.11.1989 was received from the Officer-in-charge Records, ASC Records (Supply), Bangalore to the effect that the appellant was being retained in service merely to enable him to complete 28 years of pensionable service, and he was not eligible for promotion during the extended period which was to be treated as non- qualifying service. The extension was subject to the appellant's undertaking that he would not ask for further promotion. In case he does not give such undertaking, his retention beyond 30.11.1980 would be irregular. The appellant submitted his reply to the said message and the respondents reiterated their stand. The appellant has referred to various representations and the message received in reply from the respondents. The representations and replies etc. being reiteration of their respective case, it is not necessary to give their details. 4. The case of the appellant is that his service conditions were governed by the Defence Service Regulations for Army. The appellant has referred to various representations and the message received in reply from the respondents. The representations and replies etc. being reiteration of their respective case, it is not necessary to give their details. 4. The case of the appellant is that his service conditions were governed by the Defence Service Regulations for Army. Under Regulation 165 read with the letter of Government of India, Ministry of Defence dated 16.12.1976 - Appendix IV to Army Order 13/77 - the tenure of Subedar in the Indian Army is 28 years of pensionable service or 50 years of age, whichever is earlier. Though the appellant was enrolled on 8.11.1961 he joined the Army on 14.5.1962, and that is how in the Discharge Order no. 48, dated 7.4.1989, his date of retirement was mentioned as 31.5.1990 on completion of 28 years of service reckoned from 14.5.1962. According to the appellant the pensionable service is to be counted from the date of joining and not the date of enrolment. Further case of the appellant is that the due date of superannuation being 31.5.1990, the respondents cannot deny him promotion counting the service from 8.1.1961 and treating the period between December, 1989 and May, 1990 as non qualifying. 5. From the reply of the respondents and the materials on record, it appears that on his enrolment as Recruit Clerk on 8.11.1961 the appellant had signed agreement in the prescribed format. A railway warrant alongwith advance as travel expense was given to him and he was asked to report at the training centre within a week. He however failed to report. He was declared deserter by a Court of Inquiry on 12.12.1961 and finally awarded punishment of 14 days imprisonment under Section 39(a) of the Army Act, 1950 for being unauthorisedly absent for 187 days on 16.5.1962. 6. The case of the respondents is that the due date of retirement of Subedar is completion of 28 years of pensionable service or 50 years of age, whichever is earlier. The period of service is counted from the date of enrolment and signing of enrolment form. 6. The case of the respondents is that the due date of retirement of Subedar is completion of 28 years of pensionable service or 50 years of age, whichever is earlier. The period of service is counted from the date of enrolment and signing of enrolment form. They calculated from the date of his enrolment as on 8.11.1969 the appellant was to complete 28 years of service on 30.11.1989 but on account of his unauthorised absence for 187 days, his pensionable service fell short away as many days and he was given extension for six months to enable him to retire with effect from 31.5.1990 and get full pension on the post of Subedar. The appellant had to give an undertaking that he was willing to serve for 180 days as non-qualifying service and would not claim any promotion during that period. The extension of service being for a limited purpose, namely, to enable the appellant earn full pension, he was not eligible for promotion during the extended period which is treated as non-qualifying service for the purpose of promotion under the rules. 7. The crux of the matter is whether the service would count from 8.11.1961 when the appellant was enrolled in the Army or 14.5.1962 when he reported on the duty i.e. submitted his joining. 8. It is not in dispute thereafter his enrolment on 8.11.1961, the appellant was given a railway warrant and paid rupees seven as travel advance - vide para 26 of the writ petition - and he was required to report at the training centre within a period of one week, but he did not do so and a proceeding was initiated against him in which he was sentenced to 14 days rigorous imprisonment. Having subjected himself to the proceeding and suffered imprisonment for 14 days as a measure punishment for committing offence under Section 39(a) of the Army Act, the appellant cannot contend that his service should be reckoned from 14.5.1962. The fact that he was subjected to a Court of Inquiry and Court-martial culminating in punishment clearly shows existence of employer and employee relationship, for, if he were not governed by the Army Act, there was no question of any proceeding and awarding punishment. The fact that he was subjected to a Court of Inquiry and Court-martial culminating in punishment clearly shows existence of employer and employee relationship, for, if he were not governed by the Army Act, there was no question of any proceeding and awarding punishment. Section 39 of the Army Act which deals with the offence of absence without leave, obviously can not be applied to a person who is not governed by the Army Act. The Section states, Any person subject to this Act when commits any of the following offences, that is to say, - (a) absents himself without leave; or ..... shall, on conviction by Court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned". 9. It is also not in dispute that the appellant signed the enrolment form which signifies the commencement of service under the Army on 8.11.1961. The service thus having commenced from 8.11.1961, the appellant completed 28 years of service on 7.11.1989 and in the ordinary course he would have retired on 30.11.1989. But in that case, in view of his unauthorized absence for 187 days, his service would have fallen short of the requisite 'pensionable' service, and he would not have been entitled to full pension; that is why, by way of grace or good gesture he was given extension for six months so that his service may become fully pensionable and he may get full pension on the post of Subedar, and his date of retirement/discharge was fixed accordingly. This was however subject to his giving undertaking to serve for another six months as non qualifying service during which he would not claim further promotion. Giving the benefit of extended provision was an extra benefit to make up the deficiency. Having taken the benefit of extended service to enable him to get full pension, the appellant cannot turn around and contend that the extended period may be treated as normal period of service and he should be given benefit of promotion against the vacancy occurring during that period. In legal parlance he cannot approbate and reprobate. 10. In their reply, the respondents have stated that the DPC is convened every year to ascertain the eligibility of the persons coming within the zone of promotion against anticipated vacancies during the next one year. In legal parlance he cannot approbate and reprobate. 10. In their reply, the respondents have stated that the DPC is convened every year to ascertain the eligibility of the persons coming within the zone of promotion against anticipated vacancies during the next one year. Thus in June 1989 the appellant was also considered alongwith other 73 JCOs against 11 anticipated vacancies of Subedar Major upto 31.7.1990. On 1.11.1989 Tilakdhari Yadav and Ramlakhan Mishra placed at Serial Nos. 69 and 70 respectively in the seniority list were promoted as Subedar Major. The appellant was placed at Serial No. 77. As on that date five Subedars - four of them senior to the appellant - who were also in the approved list for the post of Subedar Major retired. Regarding Tilakdhari and Ramlakhan, it was stated that though they were enrolled alongwith the appellant but they were promoted as Naik with effect-from 1.3.1963 while the appellant was promoted as Naik on 1.4.1963. The date of enrolment is relevant for promotion upto rank of Naik; for further promotion, seniority is counted from the date of promotion as Naik. 11. The claim of the appellant that he was senior to those who have been promoted thus does not appear to be correct. Besides Tilakdhari and Ramlakhan who were promoted, four Subedars senior to the appellant as on 1.12.1989 were available but they retired without being promoted because of non-availability of vacancies. In the ordinary course, the appellant too would have retired alongwith them. If they could not be promoted to the post of Subedar Major, apparently, the appellant too could not have been promoted. The appellant remained in service by virtue of extension which was for different purpose. Having been allowed benefit of extended period to enable him to earn full pension, he cannot claim the benefit of promotion against any vacancy occurring during that period. 12. It is to be kept in mind that the extension become necessary because the appellant had remained unauthorisedly absent for a period of 187 days. Treating the extended period as normal period would amount to not only giving him undue benefit of extended period, but also condoning his default. It is obvious that if he was unauthorisedly remained absent for 187 days, he alone is to blame. Treating the extended period as normal period would amount to not only giving him undue benefit of extended period, but also condoning his default. It is obvious that if he was unauthorisedly remained absent for 187 days, he alone is to blame. Indeed, benefit of promotion during the extended period - treating that period as normal period - would amount to discrimination because while others senior to the appellant who did not commit any offence, and got punished, retired on completion of 28 years of pensionable service as Subedar, the appellant would get a benefit which he did not deserve. 13. Apparently, the appellant could not claim extension of service as a matter of right. In different orders, the respondents clearly stated that if the appellant does not want to give an undertaking to threat the extended period as non-qualifying service period, during which he would not claim any promotion, he may be discharged from service on 30.11.1989, continuance of service thereafter would be irregular. However, on representation that his pensionable service of 28 years would and on 31.5.1990 an interim order however was passed by this Court in the connected writ petition on 5.1.1990 to the effect that the petitioner's services may not be terminated before 31.5.1990, and that is how the appellant continued in service upto 31.5.1990 and availed of the benefit of extended service. 14. Counsel for the appellant placed reliance on Secy.-cum-Chief Engineer v. Hari Om Sharma & Ors., JT 1998 (3) SC 654 : (1998) 5 SCC 87 , in support of the contention that any undertaking under pressure is against public policy and unenforceable in law. The undertaking which was subject-matter of consideration in that case had been given by the respondent at the time of his promotion to the post of Junior Engineer-I as stop-gap arrangement that he would not claim promotion as a matter of right nor would claim any benefit of the post. The Supreme Court found that the respondent was the only person amongst the non-diploma holders available for promotion to the post of Junior Engineer-I and was therefore, likely to be considered for promotion in his own right. The Supreme Court found that the respondent was the only person amongst the non-diploma holders available for promotion to the post of Junior Engineer-I and was therefore, likely to be considered for promotion in his own right. In that context, the Court observed that an agreement or undertaking that if he is placed on higher post or put to officiate on that post, he would not claim higher salary or other attendant benefits, would be contrary to law and against public policy. The Court observed that promotion under a stop-gap arrangement by itself would not make difference to one's claim of salary for the post because if he is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. The facts of the case and the context in which the observations were made being totally different, the decision lends no help to the appellant. 15. In the above premises, we find no merit in the case of the appellant. The order of the learned Single Judge dismissing the writ petition of the appellant therefore does not suffer from any error to warrant interference by the Division Bench. The appeal is dismissed. No order as to costs.Appeal Dismissed. *******