( 1 ) RULE D. B. We have heard the matter in detail and proceed to decide the matter.

( 2 ) BY this petition filed under Article 226 of the Constitution the petitioner, a service officer, seeks adeclaration that he was entitled to promotion to the rank of Brigadier w. e. f. 13 November 1992 and that the order dated 29 October 1992 promoting the third respondent, who was junior to the petitioner to the rank of Brigadier overlooking the right of the petitioner, was illegal and of no effect.

( 3 ) THERE are three respondents. First respondent is Union of India through the Secretary in the Department of Defence Production and Supplies in the Ministry of Defence, second respondent is the Directorgeneral,qualityassurance;andthe third Colonel S. B. Despande (now promoted as Brigadier ).

( 4 ) THE petitioner was commissioned in the Indian Army in 1962 and then permanently seconded to the Directorate General, Quality Assurance Organisation in the Department of Defence Production and Supplies in the Ministry of Defence, Government of India, New Delhi. Earlier this department was known as Directorate General, Inspection Organisation. There are two types of officers in this organisation -civilian and service (military ). There are separate rules for promotion to the higher rank in the organisation by the servce personnel. Office Memorandum dated 16 February 1982 issued by the Government of India in the Ministry of Defence gives the procedure for intake of service officers in the organisation and the terms and conditions of those permanently retained. This Office Memorandum is for promotion to the acting/substantive ranks upto the level of Brigadier against service vacancies in the organisation. It is not disputed that the petitioner was eligible for promotion to the rank of Brigadier. The number of officers to be considered from out of eligible officers in the feeder grade are determined with reference to number of vacancies anticipated in a year. The Selection Board called the Quality Assurance Selection Board is constituted of the Chairman and four members who are respectively (1) the Secretary, Defence Production and Supplies; (2) Additional Secretary (Defence Supplies); (3) Joint Secretary (Dealing with DGQA); (4) Director General of Quality Assurance; and (4) Under Secretary/deputy Secretary (Dealing with DGQA ). Then representative from the Military Secretary Branch, Army Headquarters, preferably of the rank of Brigadier, may also be co-opted, when necessary. This constitution of Selection Board is given in the letter of the Government of India dated 28 April 1981. The functions of the Board are also given in this letter. It is to assess the officers employed in the organisation for various purposes, like acting/substatantive promotion to the Lt. Colonels and above of permanently seconded officers; officiating promotions; permanent secondment in the organisation; review of cases; etc.

( 5 ) THE Board is to prepare a panel of officers equal to the number of regular anticipated vacancies plus 25% there of subject to aminimum of one additional name on the panel over and above the number of anticipated vacancies, to cover any exigencies. The panel so drawn up by the Board shall normally remain valid for one year from the date of approval of the competent authority. The panel can, however, be extended for a period of not more than six months, with the prior approval of the Secretary in the Department of Production and Supplies. In the present case, for the year 1992, five vacancies in the rank of Brigadier were anticipated. The Board drew up a panel of seven officers in the rank of Colonel for promotion to that of Brigadier. This panel was approved on 20 December 1991 by the Minister-in-Charge. the competent authority. ltwas,thus,toremain valid upto 20 December 1992. The petitioner was, however, at number seven being the last in this panel and was found fit for promotion to the higher rank of Brigadier. Seven vacan