JUDGMENT : 1. Heard the petitioner, Brigadier Javed Iqbal in person and Sri S.B. Pandey, learned Senior Advocate/Assistant Solicitor General of India assisted by Sri Varun Pandey, for the respondents. 2. These proceedings under Article 226 of the Constitution of India have been instituted by the petitioner impeaching the order dated 15.02.2022 whereby Misc. Application No.137 of 2022 filed by the petitioner in Execution Application No.11 of 2022 has been rejected by the Lucknow Bench of Armed Forces Tribunal. 3. At this juncture itself, we may note that the Execution Application No.11 of 2022 was filed by the petitioner before the Armed Forces Tribunal seeking execution of the judgment and order dated 07.01.2022 whereby the Original Application preferred by the petitioner in respect of his promotion to the post of Additional Major General (Litigation) in Judge Advocate General's Branch was allowed. The operative portion of the said judgment and order dated 07.01.2022 which finds mentioned in para 21 of the said judgment is extracted herein below:- "27. In the result, Original Application deserves to be allowed, hence allowed. Applicant is held entitled to promotion to the post of Additional Major General (Litigation) in Judge Advocate General's Branch with all consequential benefits from the date of declassification of No.1 Selection Board's result which is (05, May, 2021). Respondents are directed to promote applicant to the post of Additional Major General in JAG Branch with all consequential benefits w.e.f. 05 May, 2021. They are further directed to give effect to this order forthwith". 4. From the aforequoted operative portion of the judgment and order dated 07.01.2022 passed by the Armed Forces Tribunal, it is clear that the petitioner has been held entitled to be promoted to the post of Additional Major General (Litigation) in Judge Advocate General's Branch with all consequential benefits from the date of declassification of No.1 Selection Board's Result i.e. 05 May, 2021. In view of the aforesaid finding regarding entitlement of the petitioner to be promoted on the post of Additional Major General that the respondents were directed to promote him to the post in question with all consequential benefits w.e.f. 05 May, 2021. The Tribunal has clearly directed that, "the order shall be given effect to forthwith". 5. The petitioner is presently holding the rank of Brigadier and if he retires while holding the post of Brigadier, as per rules he will retire on 28.02.2022. The Tribunal has clearly directed that, "the order shall be given effect to forthwith". 5. The petitioner is presently holding the rank of Brigadier and if he retires while holding the post of Brigadier, as per rules he will retire on 28.02.2022. However, if he is promoted as per his entitlement in terms of the judgment and order dated 07.01.2022 passed by the Armed Forces Tribunal, to the post of Additional Major General, he shall retire on 28.02.2023. Considering the fact that his age of retirement as Brigadier is to ensue soon on 28.02.2022, the petitioner immediately instituted the execution proceeding by filing Execution Application no.11 of 2022 on 17.01.2022. The said Execution Application was taken up by the Armed Forces Tribunal on 19.01.2022, on which date the Tribunal ordered that the said application be listed on 28.01.2022. On 28.01.2022 the Execution Application was again heard, however, it was again ordered to be listed on 07.03.2022. 6. It is noticeable at this juncture itself that the respondents had moved an application seeking leave to appeal as per requirement of sub-section (2) of Section 31 of Armed Forces Tribunal Act, 2007 which was considered and rejected by the Armed Forces Tribunal on 28.01.2022 itself. Thereafter it appears that an Officer junior to the petitioner, namely, Brigadier Vijay Kumar was promoted to the post of Major General superseding the petitioner. Accordingly feeling aggrieved by the said action on the part of the respondents, firstly on account of non implementation of the judgment and order dated 07.01.2022 passed by the Armed Forces Tribunal and secondly on account of promotion of an Officer junior to him to the next higher post superseding him, he filed Writ Petition (civil) No.73 of 2022 under Article 32 of the Constitution of India before Hon'ble Apex Court which, however, was permitted to be withdrawn by the Hon'ble Apex Court on the ground that the petitioner had already instituted execution proceedings before the Tribunal. The said order by Hon'ble Apex Court was passed on 07.02.2022. 7. The said order by Hon'ble Apex Court was passed on 07.02.2022. 7. In the circumstances where the petitioner on one hand was faced with his supersession by an Officer junior to him and on the other hand he was also faced with the denial of the implementation of the judgment and order dated 07.01.2022 and further considering the fact that if he is not promoted to the post of Additional Major General, he shall retire on 28.02.2022, the petitioner moved Misc. Application bearing No.137 of 2022 in the pending execution case before the Armed Forces Tribunal with the prayer that interim direction be issued to the respondents refraining them from retiring him in service w.e.f.28.02.2022 and permitting him to continue in service during pendency of the execution application. The said application was considered which has been rejected by the order dated 15.02.2022 passed by the Tribunal which is under challenge in this petition. 8. Learned Tribunal after noticing the facts has placed reliance on Rule 45 of the Armed Forces Tribunal (procedure) Rules, 2009 and has opined that early hearing of the case under the said Rule can be permitted only in case of pending case whereas Misc Application moved in the execution proceedings cannot be termed to be a pending case. 9. Further, the Tribunal has though noticed that it had allowed the claim of the petitioner with the direction to the respondents to promote him to the next higher rank, however, the Tribunal further observes that the execution application was adjourned to 07.03.2022 in view of the provisions of appeal laid down under Section 31 of Armed Forces Tribunal Act. The Tribunal while rejecting the prayer of the petitioner by passing the impugned order dated 15.02.2022 has observed that Original Application filed by the petitioner has been allowed and his right regarding promotion has been crystallized and thus the effect of the order would remain the same as it exists today until reversed by a superior Court. Giving the said reason, the Tribunal further observed that there is no reason to allow the prayer for interim relief which is based on presumption only. 10. The Tribunal has also attempted to distinguish certain interim orders cited by the petitioner which have been passed by the Principal Bench of the Armed Forces Tribunal almost in similar circumstances. 11. Giving the said reason, the Tribunal further observed that there is no reason to allow the prayer for interim relief which is based on presumption only. 10. The Tribunal has also attempted to distinguish certain interim orders cited by the petitioner which have been passed by the Principal Bench of the Armed Forces Tribunal almost in similar circumstances. 11. It is not in dispute that if the petitioner is not promoted to the next higher post, he shall retire on 28.02.2022. It is also not in dispute that the application/petition filed by the respondents seeking leave of the Tribunal to file an appeal as per requirement of Section 31 of the Armed Forces Tribunal Act has been rejected by the Tribunal about a month ago on 28.01.2022 itself. It is also not in dispute that the respondents have not challenged the judgment and order dated 07.01.2022 before any other higher forum or court till date. In such circumstances, especially considering the fact that the petitioner is to retire on 28.02.2022, the reasons given by the Armed Forces Tribunal in its order dated 15.02.2022 denying the interim prayer made by him, in our considered opinion, are not sustainable. 12. We had required the learned Assistant Solicitor General of India to seek instructions in the matter from the Ministry of Defence, who on the basis of instructions states that Central Government in the Department of Defence has taken a decision to challenge the judgment and order dated 07.01.2022, passed by the Armed Forces Tribunal by way of filing Special Leave Petition before the Hon'ble Apex Court. However, the fact remains that as on today there is no challenge to the judgment and order dated 07.01.2022, passed by the Armed Forces Tribunal. 13. It is further noted that that the application made by the respondents seeking leave to appeal as contemplated under Section 31 of Armed Forces Tribunal Act has already been rejected about a month ago, hence we are of the opinion that there does not exist any legal impediment, whatsoever, in implementation of the judgment and order dated 07.01.2022, passed by the Armed Forces Tribunal. We can understand the procedural aspects in implementing the judgment and order dated 07.01.2022, which may take sometime, however, if it was the case of the respondents that such procedural aspects are taking sometime, it would have been appropriate for the Tribunal to have passed the order deferring the petitioner's retirement w.e.f. 28.02.2022. We may also notice that before the Tribunal the petitioner had cited an order passed by the Principal Bench of Armed Forces Tribunal on 26.11.2021 in Original Application No.1883 of 2021, Major General Rajiv Mohan Gupta Vs. Union of India and others. The Principal Bench of Armed Forces Tribunal in the said order had provided that pending final decision by the competent authority on the Review Board and consequentially in the Special Promotion Board of 2021, the retirement of the applicant in the said case shall be kept in abeyance. The petitioner had also relied upon another order dated 03.09.2020, passed by the Principal Bench of the Armed Forces Tribunal in Original Application No.996 of 2020 and MA No. 1247 of 2020, whereby the Tribunal had directed that the retirement of the applicant of the said Original Application should not be given effect to till declassification of results of the Promotion Board. 14. The Armed Forces Tribunal while passing the impugned order, however, has sought to distinguish the aforesaid orders passed by the Principal Bench by saying that in those matters right to be promoted had not crystallized whereas in the present case petitioner's right to be promoted on the next higher post has crystallized. We fail to comprehend such reason being given by the Tribunal for denying the interim prayer to the petitioner. In a fact situation where right of an individual stands crystallized, it should be more the reason why any court or tribunal should tend to grant interim relief in the nature which was prayed for by the petitioner as compared to a situation where such right had not crystallized. 15. As observed above, as on today there is no challenge to the judgment and order dated 07.01.2022 and considering the fact that the petitioner will be retiring on 28.02.2022 if not promoted to the post of Additional Major General (Litigation), in our considered opinion, the respondents ought to have acted promptly to implement the order of the Tribunal, dated 07.01.2022 considering the ensuing retirement of the petitioner. 16. 16. In the facts and circumstances of the case, we have no hesitation to hold that the Armed Forces Tribunal has failed to exercise its jurisdiction vested in it while rejecting the prayer made by the petitioner by passing the impugned order dated 15.02.2022. 17. The writ petition is, thus, allowed and the order dated 15.02.2022, passed by the Armed Forces Tribunal as is contained in Annexure No.1 to the writ petition is hereby quashed. It is directed that till final disposal of the Execution Application No.11/2022 by the Armed Forces Tribunal, the retirement of the petitioner shall be kept in abeyance. 18. We further direct that the Armed Forces Tribunal shall expedite the proceedings of the Execution Application No.11 of 2022 and conclude the same preferably within a period of eight weeks from today. 19. We have been informed that there are two vacancies on the post of Major General (Litigation) in Judge Advocate General's Branch out of which one vacancy has already been filled in by way of promoting an Officer junior to the petitioner, namely, Brigadier Vijay Kumar and for the second vacancy Promotion Board is going to be held in the month of April, 2022. Submission is that in case the second vacancy is also filled in, the petitioner would never be promoted in compliance of the judgment and order dated 07.01.2022. 20. Accordingly, we also provide that till final decision on the Execution Application No.11 of 2022 by the Armed Forces Tribunal, the second vacancy on the post of Major General (Litigation) in Judge Advocate General's Branch shall not be filled in. 21. This order shall be communicated to all the authorities concerned by learned Assistant Solicitor General of India forthwith without waiting for its certified copy. 22. In the circumstances of the case, there will be no order as to costs.