Sunanda Bhandare ( 1 ) THE petitioner joined Indian Air Force as a commissioned Pilot Officer on 06/11/1954. Thereafter he held various posts and ranks and ultimately became acting Air Vice Marshal on 16/02/1987. He became a substantive Air Vice Marshal on 01/05/1987. During his long service of 33 years the petitioner earned medals for distinguished service and had an unblemished record. The petitioner became eligible for promotion as Air Marshal in the year 1989. It is the practice of the respondents that a Special Promotion Board is convened in the beginning of the year for considering promotions to the rank of Air Marshal. A firm forecast of the vacancies likely to occur during the whole year is made available to the Special Promotion Board so that a list of eligible candidates is prepared. The criteria for promotion to Air Marshal as per the guidelines is "experience, Personality, Employability and over all performance given prime consideration. " ( 2 ) IT is the case of the petitioner that in the beginning of 1989 it was known to respondent no. 2 that there were four vacancies of Air Marshal to be filled in between 01/04/ 1989 to 31/03/1990. Of these four vacancies; two were to arise on 1st July 1989; one on 31st October 1989; and one on 31st March 1990. Thus, four Air Vice Marshals had to be selected for filling up these posts. A Special Promotion Board was constituted in February 1989 which was headed by the Chief of Air Staff as its Chairman. This Special Promotion Board instead of considering all the available and eligible Air Vice Marshals, considered only the two seniormost Air Vice Marshals and recommended their names for appointments as Air Marshal. The case of the petitioner is that the petitioner ought to have been considered for promotion as an Air Marshal in February 1989. Seven eligible Air Vice Marshals were in the zone of consideration. Out of these seven, four were to be recommended for the four clear vacancies and two as reserve. Since petitioner was at s. no. 6, he would have all chances of being placed in the select list However, non- consideration of his name by the Special Promotion Board resulted in denial of his being included in the select list. Out of these seven, four were to be recommended for the four clear vacancies and two as reserve. Since petitioner was at s. no. 6, he would have all chances of being placed in the select list However, non- consideration of his name by the Special Promotion Board resulted in denial of his being included in the select list. It is submitted that the Special Promotion Board considered and recommended only two seniormost Air Vice Marshals for mala fide reasons at the dictates of the then Chief of Air Staff for some extraneous factors I and respondents 5 and 6 were recommended for appointment as Air Marshal. It is submitted that instead of considering yearly confidential reports which were on | record, special appraisal reports of all other Air Vice Marshals were called vide letter dated 03/07/1989. According to the petitioner, this was not necessary because confidential reports for several years were already available on record and promotion could have been made on consideration of these confidential reports, It was submitted, that this procedure was adopted because respondent no. 2 wanted to promote respondents 3 and 4 who were junior to the petitioner. It is submitted that in February 1989, respondents 3 and 4 were not eligible for consideration because they had not completed two years as Air Vice Marshals and as such two confidential reports as Air Vice Marshals were not available before the Special Promotion Board. By adopting the method of calling special appraisal reports and postponing the consideration of other Air Vice Marshals for me remaining posts respondents 3 arid 4 got a chance of being considered for promotion as Air Marshal by the Special Promotion Board which met again in September 1989. It is submitted that respondents 3 and 4 were recommended for promotion as Air Marshals in September 1989 and the petitioner and AVM P. K. Verma were passed over. Being aggrieved by the supersession the petitioner filed a statutory complaint on 12/12/1989 under Section 27 of the Air Force Act 1950 which was rejected by order dated 05/01/1990 by respondent no. l. The petitioner, therefore, filed the present writ petition under Article 226 of the Constitution of India. ( 3 ) AVM P. K. Verma who was also superseded alongwith the petitioner filed another writ petition being CWP 805 of 1990. AVM P. K. Verma made a representation to respondent no. l. The petitioner, therefore, filed the present writ petition under Article 226 of the Constitution of India. ( 3 ) AVM P. K. Verma who was also superseded alongwith the petitioner filed another writ petition being CWP 805 of 1990. AVM P. K. Verma made a representation to respondent no. 2 for consideration of his case for promotion as Air Marshal during the pendency of his writ petition which was considered by the Chief of Air Staff and he was promoted as Air Marshal from 15/10/1991. Therefore, AVM P. K. Verma withdrew his writ petition. The petitioner also made a similar representation to me Chief of Air Staff. However, his representation was rejected because by then he had already retired on 31/07/1990. The petitioner however continued to pursue the writ petition because according to him if he had been promoted as Air Marshal he would have got two more years of service; the superannuation of Air Marshal being at the age of 58 years and further he would be entitled to get all the monetary benefits as Air Marshal even after his retirement ( 4 ) IT was submitted by the learned counsel for the petitioner that the whole procedure adopted by the respondents to constitute two Promotion Boards in a year, the first Special Promotion Board in February 1989 and the second in September 1989 was mala fide with a view to favour respondents 3 and 4. It was submitted that the Special Promotion Board considered and cleared only the two senior Air Vice Marshals in February 1989 knowing fully well that there were four vacancies of Air Marshal arising in the year 1989-90 and there were seven Air Vice Marshals including the petitioner who were eligible to be considered. The procedure of calling special appraisal reports of the remaining Air Vice Marshals in August 1989 was followed so that respondents 3 and 4 would be available for consideration in September 1989. It was submitted that it was not open to respondent no. 2 i. e. the Chief of Air Staff to review the confidential reports of the petitioner or call for the special appraisal reports as it was done in the present case. Learned counsel further submitted that the Special Promotion Board did not follow the settled policy and violated the eligibility criteria for me zone of consideration. It was submitted that the Special Promotion. Learned counsel further submitted that the Special Promotion Board did not follow the settled policy and violated the eligibility criteria for me zone of consideration. It was submitted that the Special Promotion. Board could not depart from the prescribed norms and recommend only two persons for promotion when there were four vacancies available in the year 1989-90. This departure, according to the learned counsel for the petitioner, was made with a mala fide intention of accommodating respondents 3 and 4. It was submitted that respondents 3 and 4 could not be considered in February 1989 because Special Promotion Board did not have two confidential reports of respondents 3 and 4 for consideration before them ( 5 ) IT was submitted by the learned counsel for the respondents mat the post of Air Marshal is filled in by way of selection on the basis of seniority-cum-merit, however comparative merit of me Air Vice Marshal is not taken into consideration. All the Air Vice Marshals in the Air Force are eligible for consideration and there is no such rule that there should be two reports before an Air Vice Marshal is considered for promotion is Air Marshal. Learned counsel further submitted that ordinarily the Special Promotion Board would recommend as many number of Air Vice Marshal for promotion as me vacancies plus a few in me reserve list, however in February 1989 when the Special Promotion Board considered the question of promotion it was felt that it would be proper if special appraisal reports of Air Vice Marshals are called before recommendations were made. It was for this reason that the Special Promotion Board considered the cases of three seniormost Air Vice Marshals and recommended respondents 5 and 6 for promotion. Since me other vacancies were to arise later it was decided to meet again in September 1989 so that further confidential reports would be available and a proper selection could be made. It was vehemently denied that this procedure was adopted to accommodate respondents 3 and 4. It was submitted that respondents 3 and. 4 could have also been considered in February 1989 and if the Chief of Air Staff wanted to favour respondents 3 and 4 these respondents could have as well been recommended in February 1989. It was vehemently denied that this procedure was adopted to accommodate respondents 3 and 4. It was submitted that respondents 3 and. 4 could have also been considered in February 1989 and if the Chief of Air Staff wanted to favour respondents 3 and 4 these respondents could have as well been recommended in February 1989. Learned counsel further submitted mat me Chief of Air Staff did not review the confidential reports of the petitioner or the other Air Vice Marshals who were not considered in February 1989 but only special appraisal reports with further material were called for and in fact that was to the advantage of the petitioner. The Special Promotion Board did not find any of the other senior Air Vice Marshals above respondents 3 and 4 fit for promotion andthus respondents 3 and 4 were considered for the remaining two vacancies of Air Marshals. Air Vice Marshal P. K. Verma was recommended in the year 1990 because every Air Vice Marshal gets maximum three chances for consideration for promotion as Air Marshal. AVM P. K. verma had been passed over twice and when his name was considered later in me year 1990 by which time he had obtained some more reports, his name was recommended for promotion as Air Marshal. The petitioner had by then retired and, therefore, he could not be considered. Learned counsel submitted that there is no such rule that only Air Vice Marshals who have been working in substantive capacity for two years are eligible to be considered for promotion to the rank of Air Marshal. Not only Air Vice Marshals with less than two years in the substantive capacity but even acting Air Vice Marshals are eligible to be promoted to the rank of Air Marshal. It was further submitted that while the forecast of vacancies may be available before a Special Promotion Board it is not mandatory for the Special Promotion Board to proceed to clear as many number of officers to match the forecast vacancies. Even in the past, there have been instances where the Special Promotion Board had cleared only a few and assembled subsequently in the same promotion year to clear the rest available vacancies. Further it was not only in respect of the petitioner that the special appraisal report was called but in respect of all me Air Vice Marshals special appraisal reports were called. Further it was not only in respect of the petitioner that the special appraisal report was called but in respect of all me Air Vice Marshals special appraisal reports were called. When the Special Promotion Board met again in September 1989 the special appraisal reports were available with the Special Promotion Board and on consideration of all these special appraisal reports the selection of respondents 3 and 4 was made. Learned counsel further submitted that the Special Promotion Board of September 1989 was in continuation of Special Promotion Board of February 1989. Learned counsel submitted that the action taken by the respondents was perfectly legal and was strictly according to the policy and the rules. ( 6 ) IT is thus clear that there were four posts of Air Marshals to be filled in the year 1989-90. The petitioner was at s. no. 6 in the seniority list of Air Vice Marshals. The respondents have not disputed that the petitioner could also be considered for being posted as Air Marshal in February 1989. In fact, it is their case that the promotion to the post of Air Marshal is to be made on the basis of seniority-cum- merit and comparative merit of the officers is not considered. Thus, if the seniormost Air Vice Marshal is not found fit the next senior is considered. As such the list of Air Vice Marshals for consideration is not restricted to respondents 3 or 4 as is done in promotion by way of selection on the basis of comparative merit. According to the respondents, even respondents 3 and 4 could be considered for appointment in February 1989 if persons senior to them were not found fit. Admittedly, the two persons who were selected in February 1989 were senior to the petitioner. The petitioner could not have made grievance regarding their selection. The petitioner is mainly aggrieved because only two posts were recommended and recommendation for the remaining two posts was kept in abeyance. According to the petitioner, this was done by the respondents because the Chief of Air Staff was interested in appointing respondents 3 and 4 to these posts and respondents 3 and 4 not being eligible in February 1989 it was considered necessary to postpone consideration till they became eligible. According to the petitioner, this was done by the respondents because the Chief of Air Staff was interested in appointing respondents 3 and 4 to these posts and respondents 3 and 4 not being eligible in February 1989 it was considered necessary to postpone consideration till they became eligible. The respondents have not disputed that ordinarily in the beginning of the year recommendations for filling up the vacancies that were likely to arise during the year are made. Thus, in order to ascertain whether there was any substance in the allegation made by the petitioner we called for the file concerning promotions to me post of Air Marshal for the year 1989-90 and have perused the same. We find that the respondents were conscious of the fact that ordinarily recommendations for filling up all the four posts would be made. A query was, therefore, raised by the Ministry of Defence why only two names were recommended for promotions. An explanation for calling the special appraisal reports and deviation from the usual practice is on record. The file does not disclose any special prejudice against the petitioner or AVM P. K. Verma. In any event since the remaining two vacancies were to arise later in November 1989 and April 1990 even if recommendations had been made in February 1989 for filling up those posts the persons selected would have to wait till the post actually fell vacant ( 7 ) WE find no force in the contention of the petitioner that only two recommendations were made because the Chief of Air Staff wanted the remaining two posts to be filled by respondents 3 and 4. In fact, if there was any personal bias of the Chief of Air Staff against the petitioner or AVM P. K. Verma it was not difficult to pass over me petitioner or AVM P. K. Verma even in February 1989 and select some other Air Vice Marshals to fill up the posts. We find from the notings that it was not for the first time that the special appraisal reports were called for before recommendations for filling up the posts were made. We also find that the special appraisal report of all other Air Vice Marshals was called and not only of the petitioner and AVM P. K. Verma. We find from the notings that it was not for the first time that the special appraisal reports were called for before recommendations for filling up the posts were made. We also find that the special appraisal report of all other Air Vice Marshals was called and not only of the petitioner and AVM P. K. Verma. There is no rule as suggested by the petitioner which requires that there should be two reports as Air Vice Marshals before a person is considered for promotion to the post of Air Marshal. As such respondents 3 and 4 could be considered for promotion as Air Marshal infebruary 1989 itself. The record shows that the petitioner was considered in September 1989 and found unfit for promotion and reasons for not selecting him have been recorded. Undoubtedly, what would be the criteria for selection to the post of Air Marshal has not been elaborately spelt out by the respondents though it was submitted that as per the guidelines, experience, personality,employability and over all perfomance were given prime consideration. According to the petitioner he fulfills me criteria and he could not have been passed over. It is not open for us in writ jurisdiction to assess the merit of the petitioner. That is the job of the Promotion Board which makes the recommendation. It is not open to this Court to substitute its own opinion and act as the Promotion Board. The Special promotion Board though is chaired by the Chief of Air Staff, consists of five seniormost Air Marshals. We find it difficult to accept that five seniormost Air Marshal would agree to select only those persons which the Chief of Air Staff desires. We expect that the persons holding such high rank would apply their own mind while making the recommendations. The petitioner though has made general allegations of mala fide against the Chief of Air Staff, he has not alleged personal mala fide. Moreover the final order of promotion is made by the Government of India and the Special Promotion Board only makes recommendation. The Chief of Air Staff has also not been made a party by name. The petitioner though has made general allegations of mala fide against the Chief of Air Staff, he has not alleged personal mala fide. Moreover the final order of promotion is made by the Government of India and the Special Promotion Board only makes recommendation. The Chief of Air Staff has also not been made a party by name. Since we find that it was not necessary for an Air Vice Marshal to have two reports as a confirmed Air Vice Marshal we see no merit in the contention of the petitioner that only two recommendations were made in February 1989 and other two posts were left over for respondents 3 and 4 to come in the zone of consideration. Undoubtedly, the petitioner would have got another chance for being considered to me post of Air Marshal in the year 1990- 91 if he had not retired by then. AVM P. K. Verma who had filed a writ petition in this Court was considered before his retirement and promoted w. e. f. 15/10/1991. The petitioner did make a grievance before us for not being given the same benefit as was given to AVM P. K. Verma. However, we find that me petitioner having retired in the meanwhile he could not have been considered in the year 1991. If AVM P. K. Verma had been given promotion as Air Marshal for the vacancy which arose m 1989 me petitioner could have made a justified grievance and claimed revised retiral benefits. But that is not the case. Thus the petitioner cannot claim relief from that date. ( 8 ) UNDER the circumstances, we see no merit in the writ petition and the same is dismissed. No costs.