IMPORTANT POINTS
Delay in constituting Selection Board despite grant of extension in service for that very purpose violates Articles 14 and 16.
There is difference between vacancy arising during period of extension of service; and promotion during extension period but vacancy arising during service period.

Judgment :-

Jagdish Singh Khehar, J.

1. The appellant was commissioned as Second Lieutenant in the Indian Army on 15.6.1969. His initial induction was into the Armoured Corps. On 25.5.1983 the appellant changed his cadre. He permanently moved into the Defence Research and Development Organisation (hereinafter referred to as ‘the DRDO’). Having gone through decades of rigorous military service and having consistently earned onward promotions to higher ranks, as were due to him from time to time, he was granted acting rank of Major General on 1.6.2004, after he had been approved for promotion to the rank of Major General by a duly constituted Selection Board.

2. On 31.3.2005 Lieutenant General Ravinder Nath retired from service. Resultantly a vacancy in the rank of Lieutenant General became available. On 1.1.2006 the appellant claims to have become eligible for the consideration for promotion to the above vacancy. It would be relevant to mention, that at that juncture, in the cadre of Major Generals, the appellant was the senior most serving officer (as per seniority list dated 29.12.2006) eligible for promotion to the rank of Lieutenant General. In the Government of India gazette (published on 6.12.2007) the appellant was shown as having been promoted as substantive Major General with effect from 7.1.2004. It would also be relevant to mention, that the name of the appellant was included in the name announced by the President of India for the award of the Vishist Seva Medal on 26.1.2007. The said award was sought to be bestowed upon the appellant, for his having rendered distinguished service of an exceptional order to the nation. It is therefore, that the appellant was desirous, that his claim be considered for onward promotion to the rank of Lieutenant General. At that juncture, the appellant had not only held the rank of Major General for more 18 months, he had also earned two confidential reports in the said rank. The record appended to the pleadings indicates, that he had also been granted vigilance clearance. Despite the above, the appellant was not considered eligible for promotion to the rank of Lieutenant General as he had not completed two years’ service in the rank of Major General at that time.

3. Under the circumstances mentioned in the foregoing paragraph, AVM R. Yadav, an officer from the Indian Air Force was inducted into the DRDO on 29.12.2005, against the vacancy in the rank of Lieutenant General created by Lieutenant General Ravinder Nath. AVM R. Yadav retired from service with effect from 31.12.2006. As such, a vacancy in the rank of Lieutenant General became available with effect from 1.1.2007.

4. On 30.4.2007, the appellant addressed a representation to the Director General DRDO asserting, that he was eligible for promotion against the existing vacancy of Lieutenant General, as he fulfilled the laid down criteria. He expressly pointed out in his above representation, that in the event of his promotion to the rank of Lieutenant General his age of retirement would stand extended. As Major General he would retire at the age of 59 years, on 29.2.2008 (as the appellant date of birth is 2.2.1949).

On his promotion to the rank of Lieutenant General his age of retirement would stand extended to 28.2.2009 i.e., to 60 years. The appellant therefore requested the authorities, to immediately constitute and convene a meeting of the Selection Board, for considering his claim for onward promotion to the rank of Lieutenant General. For the above purpose, the appellant also met various higher authorities. On all such occasions he was informed, that the action to convene a meeting of the Selection Board was under process. In fact, in November, 2007 the appellant was assured, that the meeting of Selection Board would be held in December, 2007. He was also assured, that in the event of his being considered suitable for promotion by the Selection Board, he will actually be promoted to the rank of Lieutenant General, before the date o