JUDGMENT

Devinder Gupta, J.

1. This petition under Article 226 of the Constitution of India initially was preferred on 28.10.1995. Before show cause notice was issued to the respondents, amendment was sought by the petitioner, which was allowed on 16.11.1995 on which date a show cause notice was issued to the respondents on the grievances of the petitioner that: (a) being the seniormost Major General in Army Ordinance Corps (for short "AOC"), by virtue of Regulation 70 of the Defence Service Regulations, he was entitled to be considered for appointment as Lt. General; and (b) though he had made a statutory complaint, the same was not dealt with till after the date of his retirement. After the parties exchanged their affidavits, counsel for the parties were heard on their respective submissions.

2. Petitioner claims that as Major General, he was due to retire from army on 31.10.1995. In July 1994 Lt. General Prem Sagar, Commandant, College of Materials Management (for short `CMM') of AOC prematurely retired from service. A vacancy, thus, arose in the rank of Lt. General in AOC. The petitioner being the seniormost Major General available in AOC became eligible for promotion against the said vacancy. Vacancy ought to have been filled up and given to a Major General of AOC but this was not done by the respondents. Instead the vacancy was diverted and promotion given to another Major General of some other Army Service thereby causing prejudice to the petitioner's case for promotion: Petitioner being seniormost Major General with impeccable record, though became eligible for being considered for promotion in the year 1994, was not promoted to the next rank. Since the petitioner was due for retirement on 31.10.1995, had promotion been given to the next rank of Lt. General, he would have continued to serve the Army till 31.10.1997.

3. According to the petitioner, in ordinary circumstances and as per the past practice, a panel ought to have been drawn in 1994 itself to fill up the existing and anticipated vacancy. Before 31.10.1995, in addition to the vacancy on pre-mature retirement of Prem Sagar in July. 1994, there was another anticipated vacancy which was to arise on 31.10.1995 on the retirement of Lt. Gen. S. Talwar. For reasons unknown, the vacancy of July, 1994 was diverted. Petitioner's case was adversely affected because of diversion of vacancy. Selection Board was held only in April, 1995 for filling up one anticipated vacancy that was to arise w.e.f. 31.10.1995 on the retirement of Lt. Gen. Talwar. This Selection Board, which met in April, 1995, ought to have selected at least two officers, for filling up of the then existing and the anticipated vacancy, which was to arise on 31.10.1995. Had this been done the petitioner would have been promoted against the vacancy, which had been created on pre-mature retirement of Prem Sagar much prior to the date of the petitioner's super-annuation.

4. Petitioner's case is that as per Regulation 70 of the Defence Services Regulations (hereinafter referred to as "the Regulations") promotion of the officers are generally made on the basis of order of seniority. Selection from the rank of Major General to the rank of Lt. General is required to be on the basis of seniority cum merit and the Government has consistently been following this time-tested and cardinal principle of seniority-cum-merit. There is no other criteria being followed for promotion to the rank of Lt. General. In the selection, which was held in April. 1995, only one Major General was empanelled, namely, S.K. Bhatnagar. who was next below the petitioner in seniority. Petitioner's career profile was more meritorious than that of Bhatnagar. Petitioner contends that he is fully convinced that the respondents left him out only because he was due to retire on 31.10.1995 on which date the vacancy of Lt. General was to arise. Had the respondents not diverted but restored the vacancy of Lt. General Prem Sagar, AOC, there