Judgment ( 1. ) BY this petition under Articles 226 and 227 of the Constitution of India, the following reliefs have been claimed by the petitioner: (a) a writ of CERTIORARI quashing the impugned decision of respondent No. 2 (Annexure-P-7) in the non statutory complaint of petitioner stating that there is no authorisation of Lt Cols appointment In the PC (SL) AOC Cadre. (b) a writ of MANDAMUS directing the respondents to earmark appointments upto the rank of colonel for PC (SL) AOC Cadre Officers. (c) a writ of MANDAMUS directing the respondents to merge the cadre of PC (SL) AOC Officers with other cadre if required to create promotional avenues upto the rank of Colonel as laid down in AI 85/74 (Annexure-P-1 ). (d) to issue any other writ or order and directions as deemed fit looking to the circumstances of the case. ( 2. ) LEARNED Counsel for the parties did not dispute that during the pendency of this petition the petitioner has been promoted to the rank of Lieutenant Colonel in the year 2004. ( 3. ) THE case of the petitioner is that since he is serving in the commissioned service for last more than 17 years, therefore, under Army Instruction No. 85/74 para 9 he is entitled for promotion to the rank of Lieutenant Colonel by selection. The contention of learned Counsel is that admittedly the petitioner entered in the commissioned service on 25. 7. 2003 and, therefore, on 26. 7. 1990 he became eligible for promotion to the rank of Lieutenant Colonel by selection and, therefore, his case was required to be considered for promotion on the said post by selection. On 28. 7. 1998 the Selection Board was constituted but the name of the petitioner was not sent to the Board and, therefore, he was not considered for promotion and if that is the position, necessary direction be issued to the respondents to consider the case of the petitioner for his promotion to the rank of Lieutenant Colonel w. e. f. 28. 7. 1998. ( 4. ) ON the other hand it has been contended by Shri S. C. Sharma, learned senior counsel that since there was no post of Lieutenant Colonel in the particular cadre in which the petitioner was serving, therefore, his case was not considered by the Selection Board, the meeting of which was held on 28. 7. 1998. 7. 1998. ( 4. ) ON the other hand it has been contended by Shri S. C. Sharma, learned senior counsel that since there was no post of Lieutenant Colonel in the particular cadre in which the petitioner was serving, therefore, his case was not considered by the Selection Board, the meeting of which was held on 28. 7. 1998. Since the Selection Board was considering the cases of other incumbents for their promotion in different cadres, therefore, the case of the petitioner was not referred to the Board. ( 5. ) IT has been contended by Shri Singh, learned Counsel for the petitioner that since Board was constituted to consider the cases of same cadre (SL) all the incumbents were promoted on the post of Lieutenant Colonel, therefore, the respondents were obliged to refer the name of the petitioner to the Selection Board. In support of his contention, learned Counsel has placed reliance on the decision of the Supreme Court in the case of State of Tripura and Ors. v. K. K. Roy 2003 (10 )SCALE654 , (2004 )9 SCC65 , 2004 (2 ) SLJ185 (SC ). ( 6. ) AFTER having heard learned Counsel for the parties I am of the view that this petition deserves to be dismissed. ( 7. ) NO doubt it is true that the petitioners case could have been considered since he has completed the qualifying service of 17 years in commissioned service, to the post of Lieutenant Colonel by selection, but it is equally true that since no post of Lieutenant Colonel was lying vacant in the cadre in which the petitioner was serving, therefore, though he was eligible for promotion, he could not be promoted, Para 9 (2) of the Army Instruction No. 85/74 also says that substantive promotion to the rank of Lt Col will be admissible by selection to fill vacancies in the substantive cadre. Since there was no vacancy in the said cadre case of the petitioner was rightly not referred to the Selection Board, the meeting of which was held on 28. 7. 1998. ( 8. Since there was no vacancy in the said cadre case of the petitioner was rightly not referred to the Selection Board, the meeting of which was held on 28. 7. 1998. ( 8. ) IT has been contended by the learned Counsel for the parties at the bar that by efflux of time policy was changed by the Union of India and every army officer who has served for 13 years, has bee directed to be promoted and accordingly the petitioner was also promoted to the rank of Lieutenant Colonel. ( 9. ) THE decision of K. K. Roy (supra) is tangentially off the point for the simple reason that in the said case there were no promotion avenues and in that situation the Supreme Court decided the matter. In the present case admittedly the petitioner was given promotion more than five times. However, those promotions may not be by selection, but since he was promoted five times decision of K. K. Roy (supra) is not applicable in the present factual scenario. ( 10. ) JUDGING from all angles the action of respondents cannot be said to be arbitrary in nature. The petition is found to be bereft of any substance and the same is hereby dismissed with no order as to costs.