A divison vacation bench, comprising Justice Arun Kumar and Justice Mukul Mudgal in its order said it was unfortunate that the government had not put "correct position" before the appointment committee of cabinet (ACC) in its note after the court had passed an order on March 23 this year.

"In the may 1, 1998 note by defence secretary for approval of extension and upgradation of assistant chief of air staff (logistic) S Raghavan, it was not disclosed that the court had passed an order on a petition moved by Ghosh," the court said.

The bench said defence secretary had further defined in his note to ACC that department has fully stated that a writ petition by another IAF officer, S Raghavan for promotion was pending before the court.

Justice K Ramamoorthy on March 23 accepting Ghosh's pleahad directed the government to promote him as air marshal aeronautics engineering (logistic).

However, the government challenged the order and filed an appeal before a division bench which had stayed operation of the order till today.

Seeking to continue the stay, government had moved a plea before the bench which did not agree with it.

The government counsel Rakesh Tiku submitted that no vacancy of air marshal existed in the IAF against which Ghosh could be promoted. As the bench asked whether the ACC was informed about the order of the court, Tiku said the judgement was not acceptable, therefore the appeal is before the court.

Taking strong view of the contention of the government counsel, the court said "unless you demonstrate something contrary, the basis on which approval of ACC is obtained, is wrong".

L R Gupta, appearing for Ghosh contended that IAF had upgraded the post of air marshal aeronautics engineering (AMAE) (logistics) to the level of assistant air chief of staff and deprived Ghoshof his due promotion to the rank of air marshal.

The chief of air staff and subsequently recommended that the post of AMAE (logistics) remained vacant, but this was overruled by the government, Gupta claimed.