Air Marshal J.N. Burma, Administrative Member:
1. The petitioner is a helicopter pilot who is aggrieved by his non-promotion to the rank of Group Captain and through the present petition, has prayed for the following:
(a) Quashing of the order dated 19.10.2012 rejecting his statutory representation by the Chief of the Air Staff (b) Call for
(i) Copy of Parliament /Government approval for implementation or reservation in the ratio of 9:2:2:2 for promotion to the rank of Group Captain and above in the Flying Branch of IAF;
(ii) Details of Promotion Boards for promotion to the rank of Group Captain from the year 2009 till date and govt. approval for implementation on AVSC award;
(iii) Copy of illegal moderation policy being implemented and ARs of the applicant for the period from 2000 till date;
(iv) Ratio / policy on selection of officers as DA/foreign assignments in the rank of Group Captain and above and the panels of officers and details of selection for the years 2009 till date (c) Set aside the promotion boards of years 2009 till date;
(d) Set aside illegal moderation policy of ARs;
(e) Direct the respondents to conduct fresh promotion boards for promotion to the rank of Group Captain in the year 2009 without the fixed ratio and on merit within the Flying branch or pro-rata basis to the strength from each stream being considered;
(f) Direct that all the appointments in the Personnel Branch be manned by suitable officers irrespective of branch or stream;
(g) Direct that the selection for DAs/foreign assignments in the rank of Group Captain and above be open, merit based from all branches and not done under reservation;
(h) Quash the current promotion policy to the rank of Group Captain to the extent of declaring an officer Permanently Passed Over (PPO) and allow the officers to be considered till retirement.
2. The facts which are not in dispute are as follows:
(a) The applicant joined the National Defence Academy as a cadet (NDA) through UPSC in July, 1984.
(b) The cadets who are selected for the IAF through an all India Competitive Examination undergo pre-commission training and after completion of successful training at Flying Training Establishments (FTE) of the IAF, flight cadets of the flying (Pilot) branch are trifurcated into three streams – Fighters, Helicopters and Transports.
(c) Trifurcation is carried out based on the “Policy on Trifurcation after Stage 1” dated 06 September 2002.
(d) Based on such trifurcation and on successful completion of their pre-commission training flight cadets are commissioned in the IAF and they fly different types of aircraft and their role, responsibilities and duties are different from each other;
(e) The officers are considered for promotion to the higher ranks in the branch / stream to which they belong;
(f) The applicant was considered for promotion to the Select rank of Group Captain by the Promotion Board-2 in the years 2/2009, 2010 and 2011, but was neither placed in the ‘Select Main’ nor ‘Select Reserve’ list by any of the three Promotion Boards based on his overall profile and comparative merit in his stream.
(g) The applicant submitted his first representation regarding his non-promotion to the rank of Group Captain on 11.09.2012. The said representation was rejected by the competent authority on 19.10.2012. The applicant then submitted a representation dated 03.12.2012 that his representation may be forwarded to the Central Government in terms of Section 27 of the Air Force Act, 1950. Since the representation did not fall within the parameters of Section 27 of the Air Force Act, 1950, the same was treated as a Non-Statutory representation by the respondents in terms of AFO 05/2008 and hence, rejected by the competent authority on 17.05.2013.
3. The case of the petitioner is as follows:-
(a) All Air Force cadets including those passing out of NDA were trained through common syllabus for almost a year. The applicant did extremely well and was placed relatively higher in merit
(b) Towards the end of the pre-commissioning flying training, the cadets of the flying branch were trifurcated into fighters, transports and helicopters. The criteria for trifurcation were never disclosed.
(c) Though the applicant had been asked to give three choices, and he had filled all the three choices as fighters, and he was informed by his instructor that he had been strongly recommended for fighters, he was given helicopter stream. The applicant could not comprehend the reasons as to why despite being placed at 31st in the order of merit, he had been given Helicopter stream whereas Respondent No.4 who was below the applicant in merit had been given fighter stream.
(d) The flying branch has two sub branches F(P) and F(N). F(P) is a common branch which includes officers of the fighters, helicopters and transport stream. The applicant is governed by the Air HQ Human Resource Policy Part I dated 09.07.2008 in matters of promotion. In the policy, it is nowhere mentioned that there will be a difference between the streams in matters of promotion and a ratio of 9:2:2:2 is to be maintained for fighter, transports, helicopters and navigators for promotion amongst the officers of the flying branch.
(e) At the functional level and field level (till the rank of Group Captain while tena
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ting the appointment of CO or else till Wing Commander), there is a difference in employability against cockpit vacancies. However, at higher levels there is a commonality in all staff and other managerial appointment including in the rank of Group Captain. Hence, all the higher appointments above Group Captain are tenable by the officers of the flying branch. Therefore, if there had been no disproportionate reservation for fighters, it would have prevented any injustice to the applicant.(f) Establishment of Helicopter units has grown from limited numbers in 1954 to about 34 squadrons in 2013, while the strength of fighter squadrons has come down to 35 from 45 in the last two decades. Induction of helicopter pilots has seen five to six times growth while the requirement of fighter pilots has come down drastically. Helicopters have been taking part in operations regularly including Op Meghdut in Siachen, UN Missions at Siera Leone, Congo, Somalia and Sudan, antinaxal operations in Chhattisgarh and Jharkhand and Op Rahat in Uttarakhand.(g) The applicant is an attack helicopter pilot with the kind of Operational experience which would be invaluable to the organization, especially in the higher echelons where national task oriented decision-making is required. He has flown many operational missions even in international airspaces whereas respondents No.4 and 5 in the fighter stream have never been to any operational area or been part of operations since Kargil conflict that too within the Indian Airspace. The applicant has better employability in the IAF in the higher ranks.(h) Study by the applicant on the higher levels of utility to the IAF i.e. Group Captain and above reveals that:(i) An approximate ratio of 9:2:2:2 is being maintained between fighter, transport, helicopter and navigation streams for promotion to the first higher rank of Group Captain which automatically translates into the higher ranks as well.(ii) The illegal application of ratio has resulted in approximately 87% of helicopter pilots including the applicant being forced into a truncated career progression;(iii) Statistics of promotion of Commanding officer from Helicopter stream indicate that more than 60% of the Commanding Officers including the applicant have been denied even the first select promotion to the rank of Group Captain.(j) Missile squadrons, Remotely Piloted vehicle squadrons, and unmanned Aerial Vehicle Squadrons are manned by officers of the flying branch irrespective of their streams and the applicant has also commanded one of them.(k) The applicant has qualified various training courses including the prestigious DSSC and Electronic Warfare and Missile Courses which make him versatile and more suitable for higher appointments. However, discriminatory promotion scheme illegally implemented by the respondents has resulted in officers like R-4 and R-5 who were much less qualified and junior to the applicant being promoted and the applicant has been permanently passed over.(l) The applicant holds Master Green rating on attack helicopters which is a unique distinction and he had been specially selected to man the attack helicopters during its upgrade programme. He has been Detachment Commander for helicopter detachments operating at the most difficult operating conditions and hence, is more suited for higher appointments in the IAF.(m) Officers are specially selected through screening boards for appointment as Commanding Officers as per the HRP on the subject. The applicant was also specially selected to command a missile squadron responsible for the air defence of Bombay Area. His work has been highly appreciated by his superiors. Yet, the applicant has not been promoted whereas officers like R-4 have been promoted despite not having commanded any unit as a wing commander.(n) AR feedback last received prior to the promotion board indicated that R-4 and R-5 had lower AR averages than the petitioner but they have been promoted by PB-2 due to illegal reservation of vacancies.(o) In the IAF, assessments are done at these levels as per AFO 50/97 and 2/08. When the applicant failed to get promoted he was informed that there is a policy of moderation of ARs at Air HQ. Amendment of ARs by any individual other than three authorized levels is illegal. There is a reasonable apprehension that the applicants ARs for the period Dec 2004 to Jan 2007 have been moderated illegally.(p) The applicant was given helicopter stream alongwith 20 other pilots while an equal number got commissioned in the fighter stream. 24 Wing Commanders were considered for promotion in the higher stream along with an equal number of Wing Commanders from helicopter stream while much lower number was considered from transports and navigation. The applicant had neither been informed of any ratio at the time of commissioning nor at any time till he missed his promotion to the rank of Gp Capt three times. Application of unauthorized reservation of vacancies in the ratio of 9:2:2:2 between fighters, transports, helicopters and navigators has denied the rightful promotion to the applicant from Wing Commander to Group Captain.(q) The applicant has always maintained the highest standards having been awarded flight safety stars in 1997, 1998 and 2011 for his safety record and, he operated in most demanding situations facing enemy fire at low levels. He had always maintained the highest medical standards of A1G1. The humiliation of not being promoted and declared as permanently passed over has had a negative impact on his health and he was diagnosed with hypertension in Feb 2013 with a medical category A2G2.(r) Discriminatory application of reservation has resulted in the respondents promoting some pilots who have only held applicants like staff officers and other non flying duties for more than four years with currency in flying rating at the cost of the applicant.(s) Respondent No.3 is responsible for all personnel matters. Since all the pilots in the decision making chain including R-3 have been tenanted by fighter pilots for more than 10 successive occasions, most key and important appointments are given to officers from the fighter stream. There is only one Gp Captain vacancy for diplomatic assignment from helicopter stream. Even posts like Director, ECHS is manned by a fighter pilot. Major helicopter bases are being commanded by fighter pilots. Thus, availability for helicopter stream is low, as a result of which the applicant has been denied promotion to the rank of Gp Capt.(t) The Personnel Branch at the Air HQ responsible for HR management is mostly untrained while the HR management at wings, stations and command headquarters is done by the officers who are specially trained. Over the years, the vacancies of ACAS and AOP have been tenanted by officers of fighter stream without any training in HR management. This unprofessional HR management policy of reserving vacancies of AOP, ACAS Trg, ACAS Intelligence, ACAS offensive Ops etc. for fighter pilots has resulted in many illegal policies like laying down the ratio of 9:2:2:2. The promotion policy should have been issued in the name of the President of India and not at the level of AOP.(u) The applicant’s application under Section 27 of the Armed Forces Act 1950 was not forwarded to the Central Govt. as the same was disposed without justification at the Air HQ’s end, This was because of conflict of interest as the complaint is against undue favour shown to a particular stream as the officers of the same stream are manning all relevant posts in personnel branch at Air HQ.(v) A large number of vacancies are kept as stroke vacancies. There is no policy on utilization of stroke vacancies. R-3 decides manning of the senior posts like SOA and CPSO in an ad-hoc manner resulting in denying promotion to the applicant.(w) The promotion policy pertains to higher ranks is marked confidential so that nobody gets to know and hence, cannot question the same. With such opaque policies, the applicant has been denied basic inputs on his career prospects and hence, put to a disadvantage and has been discriminated upon.(x) A large number of vacancies of Air Marshals, AVMs, Air Commodores and Group Captains (415) had been approved by the Govt. of India in AVSC Phase II. Despite vehement opposition to the AVSC award as conveyed to MOD vide Air HQ/S20615/125/Est. III dated 19.08.2004, when vacancies were finally allotted by the Government, all fighter Sqns CO vacancies have been upgraded to the rank of Gp Capt; whereas the helicopter squadrons continued to be commanded by Wing Commander. Non-upgradation vacancies of CO’s of helicopter units to Group Captain 'along with fighter Sqns has adversely affected the promotion prospects of the applicant and he has been denied his rightful promotion. There is no policy laid down for allotment of stroke vacancies.(y) Zone of consideration has been changing frequently. Ex-post-facto sanction is given by the Government since it results in unauthorized saving to the exchequer.(z) There was no member in promotion board for selection to Group Captains from helicopter stream in the years 2009, 2010 and 2011. Only fighter pilots sit and finalize the promotions in an arbitrary and discriminatory manner.(aa) PB results of 2013-14 have been declared separately as flying fighter branch, flying transport branch, flying helicopter branch and flying navigation branch. Applicant was selected for flying branch. Making separate branches for promotion amounts to changing the terms and conditions of service of the applicant and the same is against his constitutional right to employment guaranteed under Article 16. Such creation of new branches with the flying branch amounts to creation of classes within class and is against Right to Equality guaranteed under Article 14 of the Constitution.(ab) The policy laid down vide Air HQ /C98824/1/PO-5 dated 20.09.2013 has stated that the promotion to the rank of Gp Capt in the flying branch will be in a fixed ratio. Respondent No.3 is illegally applying the same ratio even at higher ranks instead of common merit based selection amongst all suitable officers.(ac) The policy of declaring officers as permanently passed over has an adverse social and functional impact. The applicant is expected to “Sir” his batchmates and juniors who have superceded him. Because of functioning of AFWWA within the AF stations, the invisible hierarchy amongst the wives has adversely affected the applicant’s family life and his relationship with his coursemates.(ad) The applicant quoted Hon’ble Supreme Court rulings in the case of Inderpreet Singh Kahlon & Ors. Vs. State of Punjab (CA 3411-3421/2005) on the adverse impact of undue haste; Gopichand Vs Delhi Administration (1959 AIR 609, 1959 SCR Supl. (2) 87) on the validity of classification; and the case of State of Sikkim Vs. Surendra Prasad Sharma on the guarantee to all persons vide Article 14, Article 15(1) and 16(2).4. The case of the respondents is as follows :-(a) The respondents raised the following preliminary objections:(i) The applicant vide the present OA is challenging the promotion policy including the review policy of ARs, allocation of vacancies for promotion to various streams in the Indian Air Force, policy for selection of officers for various appointment of defence Attache/foreign assignments, manning of appointments in personnel branch and constitution of the promotion Board etc. All such issues pertain to the domain of policy making which are exclusively within the purview of the Executive Power of the Union and hence, the same is beyond the scope and purview of judicial review under Section 14 of the AFT Act, 2007. It is the well settled legal position that appointments, manning, policy, creation and abolition of posts, promotion, allocation of vacancies etc. are executive functions and scope of interference in such matters by the courts is extremely limited.(ii) The relationship between the Govt. and its employees is not like an ordinary contract of service between master and servant but it is something in the nature of status. The policy issues raised by the applicant may be framed by the Government unilaterally and the applicant has no vested right in the matter of his promotion since promotion and posting etc. are not conditions of service. Law is well settled by the Hon’ble Supreme Court that once appointed the Government servant has no fundamental or any other right to claim that he ought to be promoted since he has only a right to be considered for promotion as per the laid down promotion policy. Since promotion is not a condition of service the employer is free to change the eligibility/qualification / criteria for promotion of its employees and policy so framed is not expected to remain so forever. The respondents have issued all policy letters after considering all the relevant material and functional requirements. Policies once formulated has been made uniformly applicable to all without any discrimination or bias.(iii) The present application is in the nature of a public interest litigation as the applicant is seeking in law for a direction from the Hon’ble Tribunal for allocation of vacancies on a pro rata basis against the laid down policy. Such relief is in the nature of a public interest litigation which is not maintainable under Section 14 of AFT Act, 2007.(iv) The relief claimed is hit by estoppel as the applicant having been considered in terms of the existing policy and after failing to make the grade on the basis of comparative merit, now seeks quashing of the very same promotion policy. The applicant, therefore, cannot approbate and reprobate. Having got commissioned in a particular stream and serving for more than 25 years and having become a Wing Commander Select in that particular stream he cannot now turn around and question the promotion policy as arbitrary or discriminatory. In these circumstances, the present OA is abuse of the process of law and is liable to be dismissed.(v) The last order of Air HQ dated 20.05.2013 was served upon the officer on 29.06.2013, whereas he filed the OA on 30.01.2014, much beyond the period of limitation of six months laid down at Section 22(a) of AFT Act, 2007. Even otherwise, there has been inordinate delay on the part of the applicant to approach the Hon’ble Tribunal on policy framed years ago which is contrary to the settled principle propounded by the Hon’ble Supreme Court in a catena of decisions to the effect that “Anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted over the years. Therefore, any belated challenge would be liable to be dismissed on the ground of delay and latches.” The said principle was laid down by the Apex Court in the cases of PS Sadasivaswamy Vs. State of Tamil Nadu (AIR 1974 SC 2271); State of Tamil Nadu Vs. Seshachalam (2007 (10) SCR 53); Ghulam Rasool Lone Vs. State of J&K (2010 (10) SCC (L&S) 539); UOI Vs. A.Durairaj (AIR 2011 SC 1084).(b) The applicant has essentially challenged the policy of the respondents in granting promotion to the officers of different streams of the flying branch on the basis of distribution of vacancies amongst the substreams in a fixed ratio. The facts of this case are squarely covered by the decision of the Apex Court in the case of UOI Vs. SL Dutta (1991 Lab IC 290). In the said case, an officer of the navigation stream in the flying branch of the Air Force had challenged a policy of the Central Govt. whereby his chances for promotion to higher rank were reduced. After considering the matter in its entirety, the Hon’ble Supreme Court had directed as follows:“The Court should rarely interfere where the question of validity of a particular policy is in question and more so where considerable materials in the fixing of policy are of a highly technical or scientific nature. In the instant case, a consideration of a policy followed in the Indian Air Force regarding the promotional chances of officers of the Navigation stream of the Flying Branch in the Air Force qua the other branches would necessarily involve scrutiny of the desirability of such a change which would require considerable knowledge of modern aircraft, scientific and technical equipment available in such aircraft to guide in navigating the same, tactics to be followed by the Indian Air Force and so on. There are matters regarding which judges and lawyers of courts can hardly be expected to have much knowledge by reason of their training and experience.”(c) The promotion to the rank of Gp Capt during the period 2009-2011 was governed by Air HQ Human Resource Policy Part 3/PO/Pr/03/2008. Para 17 of the policy lays down, “In flying and AE branches which have more than one stream, vacancies are distributed amongst the sub-streams in a fixed ratio. These ratios are determined on the basis of organizational requirements and have been approved by the Govt.” Thus, the distribution of the vacancies is based on “role-wise requirement” for manning of Gp Capt posts and is not a factor of cadre ratio. This ratio was initially fixed after the approval of the Government in 1976. The ratio approved by the Govt. in the year 1990 subsequently has been followed since then. The merit list for promotion is drawn separately for each stream in the flying branch by the Promotion Board. Therefore, comparison can only be within each stream and one cannot compare inter-se performance.(d) After initial training the applicant was selected to fly helicopters. The trifurcation to various streams like fighters, transports and helicopters is based on a number of factors, viz. Anthropometric suitability; position on flying merit list; position on the overall merit list; recommendations of the FTS Trifurcation Committee; choice of the pupils and stream-wise vacancy. Merit position in flying is not the sole criterion as seems to be the case projected by the applicant. The policy also lays down various factors which are required to be taken into consideration for assessing various attributes. Even otherwise, the applicant is barred from raising the issue of induction in helicopter stream as he had been commissioned in Jan 1988 and he cannot raise the issue after 25 years of his commissioning in the helicopter stream.(e) After trifurcation, pilots in each stream fly different class of aircraft and their role and responsibilities and duties are entirely different from each other. Their sphere of work varies materially and they undergo different kind of training and courses in the Air Force. Officers are considered for promotion to the higher ranks in the branch to which they belong. In the branches having streams, the officers belonging to a particular stream and are considered for vacancies available to a particular stream are considered for vacancies available in their streams as per the laid down the policy.(f) Functional and domain expertise requirements are essential for Group Captain posts. The total number of flying branch Group Captain posts in the IAF is fixed. Each post has a pre-defined functional requirement for which specific domain expertise is required. Therefore, distribution of Group Captain vacancies in the streams of the flying branch has been fixed as per the organizational requirement and functional needs.(g) The strength of the squadrons in the IAF varies from time to time due to obsolescence, pace of replacement and ratio of induction etc. The number of vacancies in each rank for each branch/stream is dependent on the functional requirement of the IAF. The averment of the applicant that “correspondingly, the induction of helicopter pilots has seen five to six times growth while the requirement of fighter pilots has come down drastically” is not factually correct. Capabilities of streams as fighting forces cannot be measured by a single yardstick. Peace time and war time roles of various streams are totally different. Organizational policies have evolved over a period of time and applied equally to one and all. Operational missions undertaken by the IAF are classified information. The statement of the applicant that “the fighter stream has never been to any operational area or been part of operations since the Kargil conflict and that too within the Indian Air Space and that the applicant has better employability in the IAF in higher ranks” is not based on facts and is only his perception that reflects bias and prejudiced thinking.(h) Promotion Boards were conducted as per policy in a fair and impartial manner. It comprised of five members of Air Marshal rank. Factors such as seven year AR average, marks for decorations / awards / commendations, performance in DSSC / PG Entrance Exam, seniority, past profile, future employability, fitness for command and board assessment marks are considered for all empanelled officers. The policy does specify that only Commanding officers of a specific type of squadrons will be given promotion. The relative merit and available vacancies decide the promotion of officers to the rank of Group Captain. Merit list for promotion is drawn separately for each stream in the flying branch by the promotion board. Therefore, comparison can only be done within each stream; one cannot compare inter-se stream performance. The applicant could not be promoted since other empanelled officers when higher in merit as compared to him.(j) Paras 48, 49 and 56 of AFO 2/08 lay down the provisions for review and scrutiny at Command / Air HQ. The term “moderation” is the applicants own coinage. The legality of policy of review has been upheld by the coordinate benches of AF in OA 376/13 titled Gp Capt Khatri Vs. UOI & Ors. and OA 153/13 titled Gp Cap RK Raksha Vs UOI & Others.(k) The vacancy distribution in the IAF based on functional and domain expertise requirements cannot be termed as “reservation” of those posts. It is incorrect on the part of the applicant to aver that he was never informed about the ratio. The above aspect is stated Para 16 & 17 in 04/13 of the Promotion Policy.(l) Merit is relative. The applicant could not make it in all the three promotion boards conducted by three different set of members in each board as the other empanelled officers were better placed in relative merit. Supersession is a natural consequence of the pyramidal structure of the Armed Forces. The applicant was never humiliated by the IAF at any stage.(m) The statement that “only one vacancy of Group Captain on diplomatic assignment from helicopter stream….. All the other vacancies are being filled up by officers of one particular stream” is not based on facts. A number of diplomatic posts are being tenanted by officers of the helicopter stream. Posts at ECHS are open posts which can be tenanted of by officers from any branch/stream. Presently, the post of Director, ECHS is being tenanted by two officers of helicopter stream, one by Navigation stream and one by fighter stream. All helicopter bases are commanded by officers of the helicopter stream.(n) The representation submitted by the officer was examined at Air HQ. An officer has a right only to be considered for promotion. Whether or not he gets promoted depends upon the results of the Promotion Board conducted in accordance with the laid down policy. There was nothing in the representation to show that the officer had been denied anything for which he had a right under the Air Force law. Therefore, the representations submitted by the officer dated 11.09.2012 did not fall within the ambit of Section 27 of AF Act 1950 and were processed accordingly.(o) The stroke vacancies have no bearing on denial of promotion or disadvantage to any individual or stream. These vacancies are utilized to cater for functional requirements of the organization. The applicant has given examples of posts of SOA & CPSO which are tenanted by officers of the rank of AVM and Air Cmde respectively. They have no bearing on the non-promotion of the applicant to the rank of Group Captain.(p) Distribution of AVSC vacancies for Group Captains of various streams is planned to be implemented in a phased manner. These vacancies include the Commanding officers posts of helicopter squadrons. All posts of COs of Helicopter sqns/Flts have been upgraded to the rank of Gp Captain. Therefore, the applicant was wrong in projecting that Gp Captain posts were only distributed to the fighter sqns.(q) The constitution of the promotion boards are approved by the Chief of the Air Staff. In the year 2009, the Chief of the Air Staff of the IAF was himself from the helicopter stream who had decided on the composition of the Boards. Therefore, the apprehensions of the applicant is unfounded on this account.(r) There is no “Reservation” of vacancies. The vacancy distribution in the F(P) branch amongst different streams serves the functional and domain expertise requirements of the IAF. No ‘class within class’ has been created as the officers of the three streams perform different terms. Hon’ble Supreme Court had held as follows in the case of Kuldeep Kumar Gupta Vs. Himachal Pradesh State Electricity Board (AIR 2001 SC 308) :“Providing a quota for different categories of officers for promotion purposes is not new in service jurisprudence and whenever the feeder category itself consists of different category of persons and when they are considered for any promotion, the employer fixes a quota for each category so that the promotional cadre would be equi-balanced and at the same time each category in feeder category would get the opportunity of being considered for promotion. This is also in a sense in the larger interest of the administration when it is the employer, who is best suited to decide the percentage of posts in the promotional cadre, which can be earmarked for different category of persons.”In the case of SG Jaisinghani Vs. UOI (AIR 1987 SC 1427) Hon‟ble Supreme Court has held as follows:“The concept of equality in the matter of promotion can be predicted only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said differences have a reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification.”(s) Interpreting the scope of Article 4 of the Constitution of India, the Hon‟ble Supreme Court held in the case of Charanjit Lal Choudhary Vs. UOI (1951 AIR 41, 1950 SCR 869) as follows :-“(a) Equal protection means equal protection under equal circumstances(b) The state can make reasonable classification for purposes of legislation (c) Presumption of reasonableness in favour of the legislation(d) The burden of proof is on those who challenge the legislation.”5. We have heard the learned counsels from both sides at length and perused all relevant records including those of classified nature which were produced before us by the learned counsel for the respondents.6. Two preliminary objections have been raised by the learned counsel for the respondents (a) that the court does not have the power to intervene with the policy decisions taken by the respondents (b) that there is delay in filing in the present petition.(a) In respect of the first contention, it is stated that it is trite that Courts are not required to interfere with the policy decisions which is the sole domain of the state. Therefore, Courts should not be empowered to enter into the merit of the policy decisions and hold a contrary view in this behalf. However, there is no absolute bar for the courts not to interfere with the policy if it is in violation of statute, public policy or Fundamental Rights of an individual. In this situation, Courts will be amply empowered to examine the policy in that background. As in the present case, the petitioner has specifically challenged the policy as it is violation of Article 14 of the Constitution. As according to him, he as a Helicopter pilot has been discriminated vis--vis fighter pilots. Therefore, this Court will have every reason to examine the consequence of the policy in so far as it relates to the violation of Article 14 of the Constitution. The Hon’ble Supreme Court in the case of State of MP Vs. Mala Banerjee (2015, 7 SCC) has laid down as follows:-“Where a policy is contrary to law or in violation of the provisions of the constitution or is arbitrary or irrational, the Courts must perform their constitutional duties by striking it down”.(b) In so far as the question of delay is concerned, we do not find any delay in filing the present petition. Petitioner’s statutory representation has been rejected at the level of Air HQtr, which he had filed against his non-consideration by the Promotion Board. Therefore, the petitioner has indicated sufficient cause for seeking the condonation of delay. Moreover, it may be pertinent to point out that some substantial question of fact and law has been raised in this petition, which is required to be determined by this Court which affects the rights of the petitioner and persons who are similarly situated with the petitioner. Therefore, to advance the cause of justice it would be germane for this Court to examine the case on merits.(c) Based on the submissions, the issues before us for consideration are as follows:-(i) whether AOP was the competent authority to issue the promotion policy issued in 2008 and 2013.(ii) whether the non-disclosure of the ratio of 9:2:2:2 in distribution of vacancies to the applicant would be a ground to quash the laid down policy.(iii) whether the policy is to be struck down since the same had not been issued in the name of President of India.(iv) whether allotting four and half times more vacancies to the fighter stream should be quashed as excessive since the object intended to be achieved had not been properly defined.(v) whether the promotion boards were duly constituted and whether the applicant was given a fair consideration for promotion to the rank of Gp Capt?(d) At the outset, we would like to put the matter in the correct perspective by stating that Promotion Policy/Rules are not statutory in nature. Promotion policy placed before us, are not framed in exercise of any rule-making power. Mere administrative policy or rules are not legislation of any kind. They are in the nature of statement of policy and practiced by the Govt. departments whether published or otherwise. Such administrative rules can be modified, amended or consolidated by the authorities without following any particular procedure. There are no legal restrictions to do so as long as they do not offend the provisions of the constitution or statute or statutory rules. Hon’ble Apex Court in the case of KA Nagmani Vs Indian Airlines and others (2009, 5 SCC 515) have unequivocally declared as follows :-“26 …. we have no doubt in our mind whatsoever that the Recruitment and Promotion Rules are not statutory in nature”.Govt. of India vide 16(8) 2001-D (Part III) dated 14.08.2001 delegated the power of promotion of officers upto the rank of Colonel and equivalent to the competent authorities and utilization of sanctioned posts within the overall authorized cadre in respect of officers upto the rank of Brigadier and equivalent to the AOP. Therefore, we do not find any illegality in the promotion policy being issued by the AOP in 2008 and 2013 with due concurrence of the competent authorities and Government of India. Learned ASG for the respondents produced the Government record before us which showed that the then Hon’ble Raksha Mantri Babu Jagjivan Ram had approved the Board Proceedings where the ratio of the various flying streams was fixed at 9:4:2 on 24.04.1977. On 13.12.1990 Govt. of India has approved the change of ratio to 9:2:2:2. Vide N-7 of the Air HQ/C99981/7/2/ 104(E) Vol.I dated 25.07.1990 the Govt. which states as follows:“In the instant case also, after Govt. approval is obtained, Air HQ would issue necessary amendment to the promotion policy at the level of the AOP”.Learned counsel for the petitioner raised the issue of violation of Article 77 of the Constitution on the conduct of Government Business in the issue of HRP Policy by the Indian Air Force. In our opinion, raising of such an issue in the present case is not relevant and as explained by us earlier on the status of Promotion rules, contention of the learned counsel for the petitioner in this regard is misconstrued. Hence, the ratio laid down by the Hon’ble Supreme Court in the case of Gulf Goans Hotels Company Limited and another Vs. UOI & Ors. would not be applicable in the present case. In view of the directions made by us on the nature of the promotion policy and the facts as brought out, we do not find any illegality in the issue of the promotion policy by the AOP in 2008 and 2013.(e) As regards the consequence of non-disclosure of the ratios specially in the HR policy, we do not find any merit on quashing the policy on this account alone. In our opinion, the non-publication of the ratio of distribution of vacancies would amount to be at best an irregularity and not an illegality and hence, would have no adverse impact of the promotion board duly constituted in accordance with vide the above mentioned HR Policy duly published.(f) In view of the foregoing discussions, we also find no merit in the contention of the applicant that the HR Policy is required to be struck down since the same had not been issued in the name of President of India.(g) Coming to the issue of attracting Article 14 on account of different ratios laid down by the HR Policy in respect of fighter, helicopter and navigation streams, we would like to highlight that Article 14 of the Constitution does not take away from the state its power of classification. Mere inequality is not enough to violate Article 14 since Article 14 does not prohibit reasonable classification provided the policy takes care to reasonably classify persons for achieving the purpose of the policy and it deals equally with all persons belonging to a well-defined class. Hon’ble Supreme Court in the case of Transport and Dock Workers Union and other Vs. Mumbai Port Trust and another (2011, 2 SCC 575) have laid down as follows :-“20. In our opinion Article 14 of the Constitution does not take away from the State or its instrumentality the power of classification, which to some degree is bound to produce some inequality vide State of Bombay vs. Balsara AIR 1951 SC 318. However, in our opinion, mere inequality is not enough to violate Article 14. Differential treatment, per se, does not constitute violation of Article 14. It denies equal protection only when there is no reasonable basis for differentiation vide Ameerunnissa Begum vs. Mahaboob Begum AIR 1953 SC 91 (para 11), Babulal Amthalal Mehta vs. Collector of Customs AIR 1957 SC 877 (para 16) etc.. If the law or the practice deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.21. It has been repeatedly held by this Court that Article 14 does not prohibit reasonable classification for the purpose of legislation or for the purposes of adoption of a policy of the legislature or the executive, provided the policy takes care to reasonably classify persons for achieving the purpose of the policy and it deals equally with all persons belonging to a well defined class. It is not open to the charge of denial of equal protection on the ground that the new policy does not apply to other persons. In order, however, to pass the test of permissible classification, as has been laid down by the Supreme Court in the catena of its decisions, two conditions must be fulfilled; (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that the differentia must have a rational relation to the object ought to be achieved by the statute in question, vide Gopi Chand vs. Delhi Administration AIR 1959 SC 609 (see also Basu's `Shorter Constitution of India, fourteenth edition 2009 page 81).22. Thus the classification would not violate the equality provision contained in Article 14 of the Constitution if it has a rational or reasonable basis. However, the question remains: what is `rational' or `reasonable'? These are vague words. What may be regarded as rational or reasonable by one Judge may not be so regarded by another. This could lead to chaos in the law.23. Should this vagueness or uncertainty be allowed to remain so that Judges may have total freedom or discretion? We think not. The law should be, as far as possible, clear and certain so that people know where they stand and conduct their affairs accordingly. Also, if total freedom is given to Judges to decide according to their own individual notions and fancies the law will run riot. Hence in our opinion an attempt should be made to clarify the meaning of the words `reasonable' or `rational'.24. Numerous decisions of this Court on Articles 14 and 19 of the Constitution have no doubt held certain classifications to be reasonable while other classifications have been held to be unreasonable. But what is reasonable and what is unreasonable does not appear to have been discussed in depth by any decisions of this Court, and no tests have been laid down in this connection. All that has been said is that it is not prudent or pragmatic to insist on a mathematically accurate classification covering diverse situations and all possible contingencies in view of the inherent complexities involved in society, vide State of Karnataka vs. Mangalore University Non Teaching Employees Association (2002) 3 SCC 302 (para 10), Ombalika Das vs. Hulisa Shaw (2002) 4 SCC 539 (para 11) etc.25. In our opinion while it is true that a mathematically accurate classification cannot be done in this connection, there should be some broad guidelines. There may be several tests to decide whether a classification or differentiation is reasonable or not. One test which we are laying down and which will be useful in deciding this case, is : is it conducive to the functioning of modern society? If it is then it is certainly reasonable and rational.”We would take the liberty to paraphrase the same to say whether the distribution of the vacancies in the ratio 9:2:2:2 is conducive to the functioning of a modern Air Force? If it is then it would be certainly reasonable and rational. Justifying the need for distribution vacancies between various streams, the learned ASG produced the relevant extracts on the doctrine of the Indian Air Force alongwith the relevant documents highlighting the role of the Indian Air Force in ensuring the safety of our skies and the predominant role of the fighter stream in meeting the objectives laid down for the Indian Air Force. In terms of our operations vis--vis employability of the pilots in various streams, it was shown to us that 86% of the tasks in the roles of counter air operations, counter surface force operations and strategic air campaigns etc. were assigned to the fighter stream; 6.95% to the helicopter stream and 6.2% to the transport stream. Therefore, differential treatment in the allotment of vacancies to various streams does not per se amount to violation of Article 14 of the Constitution. Article 14 is only violated when there is no conceivable reasonable basis for the differentiation. In the case before us, there appears to be a reasonable basis. We do not find any malafide or arbitrariness. Therefore, in our opinion there is no violation of Article 14 of the Constitution.(h) Be that as it may, we would like to highlight the fact that the scope of interference by the courts and tribunals is extremely limited where the question of validity of a particular policy of the Government is in question, especially in a case like the one before us where the material taken into consideration while making the policy is of a highly technical nature affecting the security of the state requiring threadbare detailed analysis by the military and strategic professionals. Hon’ble Supreme Court has highlighted the above in a number of judgments. In the case of UOI & Ors. Vs. SL Dutta & another (1991, SCC 505) the Court held as follows:-“As has been laid down more than once by this Court, the Court should rarely interfere where the question of validity of a particular policy is in question and all the more so where considerable material in the fixing of policy is of a highly technical or scientific nature. A consideration of a policy followed in the Indian Air Force regarding the promotional chances of officers in the Navigation stream of the flying branch of the Air Force qua the other branches would necessarily involve scrutiny of the desirability of such a change which would require considerable knowledge of modern aircraft, scientific and technical equipment available in such aircraft to guide in navigating the same, the tactics to be by the Indian Air Force and so on. These are matters regarding which judges and the lawyers of courts can hardly be expected to have much knowledge by reasons of their training and experience. In the present case there is no question of arbitrary departure from the policy duly adopted because before the decision not to promote respondent 1 was taken, the policy had already been changed. The question is, therefore, whether this change can be said to be arbitrary or mala fide. As we have already pointed out, we are not in a position to hold that this change in policy was not warranted by the circumstances prevailing.”In the case of PU Joshi & others Vs. Accountant General & Ors. (2003, 2 SCC 632), Hon‟ble Supreme Court has held :“Para 10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.”In the case of Hardev Singh Vs. UOI and Another (2011,10 SCC 121) Hon‟ble Supreme Court has held :-“25. In our opinion, it is always open to an employer to change its policy in relation to giving promotion to the employees. This court would normally not interfere in such policy decisions. We would like to quote the decision of this Court in the case of Virender S. Hooda & Ors. v. State of Haryana where this Court had held in para 4 of the judgment that: (SCC p.699)"4......When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same."26. Similarly, in the case of Balco Employees' Union (Regd.) v. Union of India it has been held that a court cannot strike down a policy decision taken by the Government merely because it feels that another policy would have been fairer or wiser or more scientific or logical. It is not within the domain of the court to weigh the pros and cons of the policy or to test the degree of its beneficial or equitable disposition.”(j) On the facts, based on the documents produced before us, we are satisfied that the promotion boards were duly constituted and the applicant was given a fair consideration. As a matter of fact, the constitution of the promotion boards in 2008 and 2009 were approved by Air Chief Marshal FH Major, the then Chief of the Air Staff who was a helicopter pilot himself. Therefore, the allegation of bias on the constitution of the promotion board on the part of the petitioner is totally unfounded. We also perused the Appraisal Reports of the applicant and we found them to be in order and they had been reviewed in accordance with the laid down policy. The policy in question had been found to be valid by a coordinate bench of this Tribunal in the case of Gp Capt TM Rao Vs. Union of India & Ors. (OA 155/2011) wherein the Tribunal held as follows:“12. Therefore, we look at it from the point of view of objectivity, we don’t find that para 17 in any way, or para 15 are violative of Article 14 and Article 16 of the Constitution. These are the normal norms which have been assessing the ARs of the persons who are working in the Air Force or working outside the Air Force. Therefore, so far as the norms laid down are concerned we don’t find any arbitrariness or illegality. These norms have been framed by the Air Force and they are consistently followed for all ranks. Therefore, there is no invalidity of these norms. It is true that sometimes one may get a very inflated report because of lack of bonafide consideration, while others may get a very poor report. Therefore, in order to be fair to all, this system has been evolved so that officers may not stand to suffer and it creates a level platform. As such so far as the procedure which has been adopted by them there is concerned it does not suffer from any invalidity.”The procedure has also been upheld by this Hon’ble Tribunal in OA 376/13 titled Group Captain RK Khatri Vs. Union of India & Ors decided on 15.01.2014 and OA 153/13 titled Gp Capt RK Raksha Vs. UOI & others decided on 03.07.2014.In the year 2009, since the panel size for navigators was zero, out of the ten vacancies for Navigation stream, six were given to the helicopter stream and four were given to the transport stream, keeping in view the aspirational requirements. Similarly, seven additional vacancies available were all allotted to the helicopter stream in the year 2010. The applicant was considered as a first timer in PB (2/2009) and second timer in PB 2/2010 but he did not make the merit list for promotion, despite additional vacancies being given to the helicopter stream as reflected above.7. In respect of the issue of the applicant’s selection in the helicopter stream at the time of commissioning, the same cannot be questioned after a gap of 25 years. Therefore, we dismiss the belated challenge on this account on the ground of delay and latches.8. For the aforesaid reasons, we are of the view that no injustice has been caused to the applicant and his case has been duly considered for promotion to the rank of Gp Capt by Promotion Boards thrice in accordance with the laid down HR Policy. However, since other officers were better placed than him in his stream, he could not be promoted. In view of the above, we find no merit in the appeal.9. The petition is dismissed with no order as to costs.