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Monday, September 14, 2015

CATCH UP RULE - SENIORTY - SERVICE MATTER- In the absence of any provision for consequential seniority in the rules, the ‘catch up rule’ will be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority. The Division Bench appears to have proceeded on an erroneous footing that Article 16 (4A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotees and the judgment of the Division Bench cannot be sustained. 36. In the result, the impugned judgment is set aside and these

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6631-6632 of 2015
(Arising out of SLP (Civil) Nos. 8366-8367 of 2012)

S. PANNEER SELVAM & ORS. ..Appellants
Versus
GOVERNMENT OF TAMIL NADU & ORS. ..Respondents

WITH
CIVIL APPEAL NO. 6633 of 2015
(Arising out of SLP (Civil) No.10928 of 2012)
VENKATACHALAM & ORS. ..Appellants
Versus
THE SECRETARY, GOVERNMENT
OF TAMIL NADU & ORS. ..Respondents

AND
CIVIL APPEAL NOS. 6634-6636 of 2015
(Arising out of SLP (Civil) Nos. 16692-16694 of 2012)

GOVERNMENT OF TAMIL NADU
AND ANR. ETC.ETC. .Appellants
Versus
V. VIVEKANANDAN & ORS. ETC. ETC. ..Respondents

J U D G M E N T
R. BANUMATHI, J.

Leave granted in all the special leave petitions.
2. Common issues involved in this bunch of appeals are:-(i) In the
absence of policy decision taken by the State/rules framed pursuant to the
enabling provision of Article 16 (4A) of the Constitution of India whether
a reserved category candidate promoted on the basis of reservation earlier
than his senior general category candidate in the feeder category can claim
consequential seniority in the promotional post; (ii) In the absence of
policy decision taken by the State with regard to Tamil Nadu Highways
Engineering Service Rules, whether Division Bench was right in holding that
Article 16(4A) of the Constitution of India by itself would give
consequential seniority in addition to accelerated promotion to the roster-
point promotees.
3. These appeals are filed assailing the common judgment dated
25.11.2011 passed by the High Court of Judicature at Madras in Writ Appeals
No. 113, 207 and 208 of 2009 whereby the High Court while setting aside the
order passed by the learned Single Judge observed that the object of the
amending Article 16 (4A) of the Constitution of India is to give
consequential seniority in addition to accelerated promotion to
roster–point promotees thereby holding that ‘catch-up rule’ is not
applicable among the Assistant Divisional Engineers appointed from the post
of Junior Engineers following the rule of reservation. For convenience,
parties are referred to as per their array in the appeals arising out of
SLP (Civil) Nos. 8366-8367 of 2012.
4. The appellants are graduate Assistant Engineers and the
contesting private respondents are Diploma holder Junior Engineers are
entangled in several rounds of litigation for about two decades over the
nagging question of ‘catch-up rule’ and the consequential seniority in the
promotional post of Assistant Divisional Engineers. Before adverting to
the legal issues, it would be appropriate to refer to the background facts.
Engineers of Tamil Nadu Highways Department viz., Chief Engineers,
Superintending Engineers, Divisional Engineers and Assistant Divisional
Engineers are governed by Tamil Nadu Highways Engineering Service Rules.
Assistant Engineers, Junior Engineers, Supervisors and further lower
categories are governed by Tamil Nadu Highways Engineering Subordinate
Service Rules. The categories viz., Assistant Engineers and Junior
Engineers were feeder categories to the category of Assistant Divisional
Engineer and the first three vacancies to be filled by Assistant Engineers
and the fourth vacancy to be filled by recruitment by transfer by Junior
Engineer of Tamil Nadu Highways Engineering Subordinate Service. Rule 12 of
Special Rules to Tamil Nadu Highways Engineering Service prescribes
application of rule of reservation for the appointment of Assistant
Divisional Engineers by direct recruitment and recruitment by transfer.
Accordingly prior to 24.05.1993, the Assistant Engineers and Junior
Engineers were appointed as Assistant Divisional Engineers by recruitment
by transfer after following the rule of reservation.
5. List of Assistant Engineers/Junior Engineers as on 01.01.1993
was published vide Chief Engineer Memo No. 960/N4/91 dated
18.04.1994 not following the ‘catch up rule’. One Assistant Divisional
Engineer (ADE) D. Rajendran who belonged to general category, who was
overlooked for promotion by Assistant Engineers who belonged to reserved
category filed O.A. No.2186/1996 before the Tamil Nadu Administrative
Tribunal challenging the consequential seniority given to the reserved
category Assistant Divisional Engineers and prayed to revise the seniority
in the higher category as obtained in the lower category. Relying upon
Ajit Singh Januja & Ors. vs. State of Punjab & Ors., (1996) 2 SCC 715,
vide order dated 29.11.1996, the tribunal allowed the application observing
that even though the respondents therein were promoted as ADEs earlier to
D. Rajendran, they cannot be placed above the applicant by virtue of
accelerated promotion and giving them the consequential seniority.
Aggrieved by the order in O.A. 2186/1996, Special Leave Petition (Civil)
No. 24455/1996 was filed by the ADEs of the reserved category which was
dismissed by this Court vide order dated 18.12.1996.
6. On 29.04.2004, seniority list of Assistant Divisional Engineers
was published by applying ‘catch-up rule’ among ADEs appointed from
Assistant Engineers and consequential seniority was not given to SC/ST
Assistant Divisional Engineers appointed from Assistant Engineers. But the
‘catch-up rule’ was not applied among the ADEs appointed from Junior
Engineers and thereby giving benefit of consequential seniority to SC/ST
Assistant Divisional Engineers appointed from Junior Engineers in addition
to accelerated promotion. Aggrieved by the seniority list dated 29.04.2004
and the subsequent seniority list fit for further promotion to the post of
Divisional Engineer dated 19.08.2005, the Assistant Engineers who were
selected by the Tamil Nadu Public Service Commission under the junior
category filed the writ petition in the High Court. Contention advanced by
the appellants/writ petitioners was that the promotion given to Junior
Engineers as ADEs was based on rule of reservation and in the promotional
post it would not reverse the seniority of the seniors in the feeder
category who gained promotions subsequently. Relying on the decisions of
this Court reported in Union of India And Ors. vs. Virpal Singh Chauhan And
Ors., (1995) 6 SCC 684; Ajit Singh Januja And Ors. vs. State of Punjab
And Ors., (1996) 2 SCC 715; R.K. Sabharwal And Ors. vs. State of Punjab
And Ors., (1995) 2 SCC 745; Ajit Singh And Ors. (II) vs. State of Punjab
And Ors., (1999) 7 SCC 209 and M. Nagaraj And Ors. vs. Union of India And
Ors., (2006) 8 SCC 212, learned Single Judge of the High Court held that
the State failed to follow the dictum laid down by the Supreme Court in the
above judgments and erred in issuing the seniority list of Assistant
Divisional Engineers, Tamil Nadu Highways Engineering Service by ignoring
the principle of ‘catch-up rule’ vis-a-vis ‘inter-se seniority’ of the
seniors who have gained promotion subsequently. The Single Judge thus
allowed the batch of writ petitions by setting aside the seniority list
dated 29.04.2004 and directed the authorities to prepare the revised
seniority list of the Assistant Divisional Engineers.
7. Aggrieved, the respondents-promotees promoted as ADEs from
Junior Engineers in the reserved category preferred writ appeals and the
Division Bench by the impugned judgment while setting aside the order
passed by the Single Judge held that the object of the amending Article 16
(4A) of the Constitution of India is to give accelerated promotion to
roster-point promotees in addition to accelerated promotion and thereby
held that the ‘catch-up rule’ is not applicable among the Assistant
Divisional Engineers appointed from the post of Junior Engineers by
recruitment by transfer following reservation rules. These appeals assail
the correctness of the above judgment.
8. Having heard both the parties, we have given our thoughtful
consideration to the rival contentions in the light of the principles
enunciated by this Court in a catena of decisions.
9. The concept of ‘catch-up rule’ and ‘consequential seniority’ is
judicially evolved concepts to control the extent of reservation. The
question of reservation and the associated promotion and the consequential
seniority have been the matter of discussion in various decisions of this
Court. The matter regarding reservation in promotions was considered by a
nine Judge Bench of this Court in Indra Sawhney And Ors. vs. Union of
India And Ors., (1992) Supp. 3 SCC 217 and this Court held that the
reservation under Article 16(4) of the Constitution of India is confined
only to initial appointment and cannot extend to reservation in the matter
of promotion. In order to nullify the effect of the aforesaid dicta, there
was an amendment to Article 16 by Constitution (Seventy-seventh Amendment)
Act with effect from 17.06.1995. Vide this Amendment, after Clause (4),
Clause (4A) was inserted in Article 16 of the Constitution.
10. Clause (4) and Clause (4A) of Article 16 of the Constitution of
India read as under:-
“Clause 4. Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.

Clause 4A. Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion to any class or classes
of posts in the services under the State in favour of the Scheduled Castes
and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.”

11. Article 16 (4) of the Constitution of India enables the State
to make a provision for reservation for appointments or posts in favour
of any backward class of citizens which in its opinion is not adequately
represented in the services under the State. The constitutional position on
the insertion of Clause (4A) in Article 16 is that the State is now
empowered to make provision for reservation in the matter of promotions as
well, in favour of SCs and STs wherever the State is of the opinion that
the SCs and STs are not adequately represented in the service under the
State. Clause (4A) of Article 16 of the Constitution is only an enabling
provision which empowers the State to make any provision for reservation
for SC and ST candidates in the matter of promotion as well.
12. In Union of India And Ors. vs. Virpal Singh Chauhan And Ors.,
(1995) 6 SCC 684, a question had arisen as to whether a person in SC or ST
category who gets accelerated promotion because of reservation would also
get consequential seniority in the higher post if he gets that promotion
earlier than his senior in general category and this Court held that such
an employee belonging to SC/ST category on promotion would not get
consequential seniority and his seniority will be governed by the panel
position. It was held as under:-
“24. …In short, it is open to the State, if it is so advised, to say that
while the rule of reservation shall be applied and the roster followed in
the matter of promotions to or within a particular service, class or
category, the candidate promoted earlier by virtue of rule of
reservation/roster shall not be entitled to seniority over his senior in
the feeder category and that as and when a general candidate who was senior
to him in the feeder category is promoted, such general candidate will
regain his seniority over the reserved candidate notwithstanding that he is
promoted subsequent to the reserved candidate. There is no
unconstitutionality involved in this. It is permissible for the State to so
provide…”

13. The decision in Virpal Singh Chauhan case led to another
Constitution Amendment and the Parliament enacted Constitution (Eighty-
fifth Amendment) Act 2001 whereby Clause (4A) of Article 16 was further
amended enabling the State to make a provision for reservation in matters
of promotion with consequential seniority. Amended Clause (4A) reads as
under:-
“4A. Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion with consequential
seniority to any class or classes of posts in the services under the State
in favour of the Scheduled Castes and the Scheduled Tribes which, in the
opinion of the State, are not adequately represented in the services under
the State.”

Eighty-fifth Amendment was made effective retrospectively from 17.06.1995,
that is, the date of coming into force the original Clause (4A) of Article
16 of the Constitution of India.
14. In Ajit Singh Januja And Ors. vs. State of Punjab And Ors.,
(1996) 2 SCC 715, by placing reliance on the principle laid down in Indra
Sawhney case and also the Constitution Bench judgment in R.K. Sabharwal And
Ors. vs. State of Punjab And Ors., reported in (1995) 2 SCC 745, a three
Judge Bench accepted the principle of ‘catch-up rule’ as laid down in
Virpal Singh Chauhan case observing that the balance must be maintained in
such a manner that there was no reverse discrimination against the general
category candidates and that any rule/circular or order which gives
seniority to the reserved category candidates promoted at the roster-point
would be violative of Articles 14 and 16 of the Constitution of India.
15. In Jagdish Lal And Ors. vs. State of Haryana And Ors., (1997) 6
SCC 538, another three Judge Bench opined that seniority granted to the
Scheduled Caste and Scheduled Tribe candidates over a general category
candidate due to his accelerated promotion does not in all events got wiped
out on promotion of general category candidate.
16. In Ajit Singh And Ors.(II) vs. State of Punjab And Ors., (1999)
7 SCC 209, the Constitution Bench was concerned with the issue whether the
decisions in Virpal Singh Chauhan and Ajit Singh Januja case which were
earlier decided to the effect upholding the ‘catch-up rule’, that is, the
seniority of general category candidates is to be confirmed or whether the
later deviation made in Jagdish Lal case against the general category
candidates. In Ajit Singh (II) case, inter-alia, the following points arose
for consideration:-
(i). Can the roster-point promotees count their seniority in the promoted
category from the date of their continuous officiation vis-à-vis general
candidates, who were senior to them in the lower category and who were
later promoted to the same level?

(ii) Have Virpal [(1995) 6 SCC 684] and Ajit Singh [(1996) 2 SCC 715] been
correctly decided and has Jagdish Lal [(1997) 6 SCC 538] been correctly
decided?

(iii) Whether the “catch-up” principles are tenable?

17. The Constitution Bench held that Articles 16(4) and (4A) did
not confer any fundamental right to reservation and that they are only
enabling provisions. Overruling the judgment in Jagdish Lal case and
observing that rights of the reserved classes must be balanced against the
interests of other segments of society in para (77), this Court held as
under:-
“77. We, therefore, hold that the roster-point promotees (reserved
category) cannot count their seniority in the promoted category from the
date of their continuous officiation in the promoted post, — vis-à-vis the
general candidates who were senior to them in the lower category and who
were later promoted. On the other hand, the senior general candidate at the
lower level, if he reaches the promotional level later but before the
further promotion of the reserved candidate — he will have to be treated as
senior, at the promotional level, to the reserved candidate even if the
reserved candidate was earlier promoted to that level. We shall explain
this further under Point 3. We also hold that Virpal, (1995) 6 SCC 684 and
Ajit Singh, (1996) 2 SCC 715 have been correctly decided and that Jagdish
Lal, (1997) 6 SCC 538 is not correctly decided. Points 1 and 2 are decided
accordingly.”

18. Constitutional validity of Clauses (4A) and (4B) of Article 16
of the Constitution was challenged in M. Nagaraj And Ors. vs. Union of
India And Ors., (2006) 8 SCC 212. The question that came up for
consideration was whether by virtue of impugned constitutional amendments,
the power of Parliament was so enlarged as to obliterate any or all of the
constitutional limitations and requirements upholding the validity of the
said Articles with certain riders. On the concept of ‘catch-up rule’ and
consequential seniority, this Court held as under:-
“79. Reading the above judgments, we are of the view that the concept of
“catch-up” rule and “consequential seniority” are judicially evolved
concepts to control the extent of reservation. The source of these concepts
is in service jurisprudence. These concepts cannot be elevated to the
status of an axiom like secularism, constitutional sovereignty, etc. It
cannot be said that by insertion of the concept of “consequential
seniority” the structure of Article 16(1) stands destroyed or abrogated. It
cannot be said that “equality code” under Articles 14, 15 and 16 is
violated by deletion of the “catch-up” rule. These concepts are based on
practices. However, such practices cannot be elevated to the status of a
constitutional principle so as to be beyond the amending power of
Parliament. Principles of service jurisprudence are different from
constitutional limitations. Therefore, in our view neither the “catch-up”
rule nor the concept of “consequential seniority” is implicit in clauses
(1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan, (1995)
6 SCC 684.”

19. In Nagaraj case Court further considered two questions viz.:-
(1) Whether there is any upper-limit beyond which reservation is not
permissible? (2) Whether there is any limit to which seats can be reserved
in a particular year; in other words, the issue is whether the percentage
limit applies only on the total number of posts in the cadre or to the
percentage of posts advertised every year as well? Answering the said
questions in paras (121) and (123), this Court held as under:-
“121. The impugned constitutional amendments by which Articles 16(4-A) and
16(4-B) have been inserted flow from Article 16(4). They do not alter the
structure of Article 16(4). They retain the controlling factors or the
compelling reasons, namely, backwardness and inadequacy of representation
which enables the States to provide for reservation keeping in mind the
overall efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They do not
obliterate any of the constitutional requirements, namely, ceiling limit of
50% (quantitative limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBCs on one hand and SCs and STs
on the other hand as held in Indra Sawhney, 1992 Suppl. (3) SCC 217, the
concept of post-based roster with inbuilt concept of replacement as held in
R.K. Sabharwal, (1995) 2 SCC 745.

123. However, in this case, as stated above, the main issue concerns the
“extent of reservation”. In this regard the State concerned will have to
show in each case the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative
efficiency before making provision for reservation. As stated above, the
impugned provision is an enabling provision. The State is not bound to make
reservation for SCs/STs in matters of promotions. However, if they wish to
exercise their discretion and make such provision, the State has to collect
quantifiable data showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to compliance
with Article 335. It is made clear that even if the State has compelling
reasons, as stated above, the State will have to see that its reservation
provision does not lead to excessiveness so as to breach the ceiling limit
of 50% or obliterate the creamy layer or extend the reservation
indefinitely.”

The Constitution Bench judgment in Nagaraj case (supra) was subsequently
followed in Shiv Nath Prasad vs. Saran Pal Jeet Singh Tulsi And Ors.,
(2008) 3 SCC 80 and Chairman And Managing Director, Central Bank of India
And Ors. vs. Central Bank of India SC/ST Employees Welfare Association And
Ors., 2015 (1) SCALE 169.
20. While considering the validity of Section 3(7) of Uttar
Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes
and Other Backward Classes) Act, 1994, and Rule 8A of U.P. Government
Servants Seniority Rules, 1991 which provided for consequential seniority
in promotions given to SCs/STs by virtue of rule of reservation/roster and
holding that Section 3(7) of the 1994 Act and Rule 8A of 1991 Rules are
ultra vires as they run counter to the dictum in M. Nagaraj’s case in Uttar
Pradesh Power Corporation Limited vs. Rajesh Kumar And Ors., (2012) 7 SCC
1, in paragraph (81), this Court summarized the principles as under:
“(i) Vesting of the power by an enabling provision may be constitutionally
valid and yet “exercise of power” by the State in a given case may be
arbitrary, particularly, if the State fails to identify and measure the
backwardness and inadequacy keeping in mind the efficiency of service as
required under Article 335.
(ii) Article 16(4) which protects the interests of certain sections of the
society has to be balanced against Article 16(1) which protects the
interests of every citizen of the entire society. They should be harmonized
because they are restatements of the principle of equality under Article
14.
(iii) Each post gets marked for the particular category of candidates to be
appointed against it and any subsequent vacancy has to be filled by that
category candidate.
(iv) The appropriate Government has to apply the cadre strength as a unit
in the operation of the roster in order to ascertain whether a given
class/group is adequately represented in the service. The cadre strength as
a unit also ensures that the upper ceiling limit of 50% is not violated.
Further, roster has to be post-specific and not vacancy based.
(v) The State has to form its opinion on the quantifiable data regarding
adequacy of representation. Clause (4-A) of Article 16 is an enabling
provision. It gives freedom to the State to provide for reservation in
matters of promotion. Clause (4-A) of Article 16 applies only to SCs and
STs. The said clause is carved out of Article 16(4-A). Therefore, clause (4-
A) will be governed by the two compelling reasons-“backwardness” and
“inadequacy of representation”, as mentioned in Article 16(4). If the said
two reasons do not exist, then the enabling provision cannot be enforced.
(vi) If the ceiling limit on the carry over of unfilled vacancies is
removed, the other alternative time factor comes in and in that event, the
timescale has to be imposed in the interest of efficiency in administration
as mandated by Article 335. If the timescale is not kept, then posts will
continue to remain vacant for years which would be detrimental to the
administration. Therefore, in each case, the appropriate Government will
now have to introduce the duration depending upon the fact situation.
(vii) If the appropriate Government enacts a law providing for reservation
without keeping in mind the parameters in Article 16(4) and Article 335,
then this Court will certainly set aside and strike down such legislation.
(viii) The constitutional limitation under Article 335 is relaxed and not
obliterated. As stated above, be it reservation or evaluation,
excessiveness in either would result in violation of the constitutional
mandate. This exercise, however, will depend on the facts of each case.
(ix) The concepts of efficiency, backwardness and inadequacy of
representation are required to be identified and measured. That exercise
depends on the availability of data. That exercise depends on numerous
factors. It is for this reason that the enabling provisions are required to
be made because each competing claim seeks to achieve certain goals. How
best one should optimize these conflicting claims can only be done by the
administration in the context of local prevailing conditions in public
employment.
(x) Article 16(4), therefore, creates a field which enables a State to
provide for reservation provided there exists backwardness of a class and
inadequacy of representation in employment. These are compelling reasons.
They do not exist in Article 16(1). It is only when these reasons are
satisfied that a State gets the power to provide for reservation in the
matter of employment.”

21. In the light of the above, we shall consider the factual matrix
and the rival contentions urged and the purport of Rule 12 of Tamil Nadu
Highways Engineering Service Rules.
22. Dr. Rajiv Dhawan, learned Senior Counsel for the appellants
submitted that while it is well-settled law followed by this Court in a
catena of cases M. Nagaraj And Ors. Vs. Union of India & Ors., (2006) 8 SCC
212 that Article 16 (4A) is only an enabling provision and does not
automatically confer right on the reserved categories and when no policy
decision was taken by the State, Article 16 (4A) does not per se applicable
to Tamil Nadu Highways Engineering Service conferring consequential
seniority to the Junior Engineers who obtained accelerated promotion by
following rule of reservation. It was further submitted that post of
Assistant Engineers to be promoted as ADEs constitute more than 75% of the
cadre strength and by not applying the ‘catch up rule’ among the Assistant
Divisional Engineers promoted from Junior Engineers by following rule of
reservation would result in patent discrimination creating disharmony
amongst the cadre. Onbehalf of the appellants, it was urged that the
implementation of the impugned judgment of the Division Bench of the High
Court would result in conferring seniority to a less qualified and less
experienced Assistant Divisional Engineer appointed from Junior Engineer
belonging to SC/ST category and who stand on a higher footing both on
education and experience than the Assistant Divisional Engineers belonging
to general category would offend the rule of equality.
23. Per contra, learned Senior Counsel Mr. R. Thiagarajan and Ms.
Kiran Suri appearing for the respondents contended that there is no common
list of seniority of the appellants who are the direct recruit Assistant
Engineers and the respondents who are in the cadre of Junior Engineers and,
therefore, the services of the appellants and the respondents cannot be
compared and the ‘catch up rule’ is not applicable. The learned Senior
Counsel further contended that promotion given to the respondents were not
accelerated promotion but promotion on account of rule of reservation
following Rule 12 of Tamil Nadu Highways Engineering Service Rules. The
respondents contended that Article 16 (4A) of the Constitution has been
added to protect the consequential seniority arising out of accelerated
promotions and when such amendment is held to be valid and not ultra vires
the Constitution by this Court in M. Nagaraj case (supra), the Single Judge
ought not to have allowed the writ petitions and the Division Bench rightly
set aside the order of the Single Judge.
24. Article 16(4A) of the Constitution is only an enabling
provision which specifically provides that the concerned State may make any
provision for providing reservation of appointments or posts in favour of
any backward class citizens which is not adequately represented in the
services under the State. Articles 16(4) and 16(4A) have to be read with
Article 335 of the Constitution which deal with norms of Scheduled Castes
and Scheduled Tribes to services and posts and lay down that the claims of
the members of the Scheduled Castes and the Scheduled Tribes shall be taken
into consideration consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State. In the absence of
any policy decision taken by the State of Tamil Nadu, Eighty-fifth
Amendment per se will not protect the consequential seniority granted to
the respondents who were promoted to the post of Assistant Divisional
Engineers following the rule of reservation.
25. The respondents placed heavy reliance upon Rule 12 of the
Special Rules Tamil Nadu Engineering Service and contended that their
consequential seniority is protected in terms of Rule 12 and under Article
16 (4A) of the Constitution of India. Rule 12 reads as under:-
“Rule 12: Reservation of appointments: The rule of reservation of
appointments (General Rule 22) shall apply to the appointment of Assistant
Divisional Engineers by direct recruitment and recruitment by transfer
separately and the appointment of Assistant Engineers by direct
recruitment.”

As per Rule 12, reserved category Assistant Engineers and the reserved
category Junior Engineers secured promotion as Assistant Divisional
Engineers much earlier to the general category Assistant Engineers and
Junior Engineers respectively because of their accelerated promotion
following rule of reservation.
26. The true legislative intent under Article 16 (4A) of the
Constitution is to enable the State to make provision or frame rules giving
consequential seniority for the accelerated promotion gained based on the
rule of reservation. Rule 12 evidently does not provide for the
consequential seniority for reserved category promotees at any point of
time. The consequential seniority for such reserved category promotees can
be fixed only if there is express provision for such reserved category
promotees in the State rules. In the absence of any specific provision or
policy decision taken by the State Government for consequential seniority
for reserved category accelerated promotees, there is no question of
automatic application of Article 16 (4A) of the Constitution.
27. Respondents contended that in about eight departments of the
State, rule of reservation is followed and one among them is Tamil Nadu
Highways Engineering Service and in terms of Rule 12 practice of following
rule of reservation in promotion is in existence for more than sixty years
and therefore the Division Bench rightly extended the protection under
Article 16(4A) to accelerated promotees. We are not impressed with the
above submission. In terms of Rule 12, reservation is followed only for
promotion of AEs/JEs as Assistant Divisional Engineers and Rule 12 does not
protect the consequential seniority to ADEs who were promoted following the
rule. The appellants belonging to the general category are not questioning
the accelerated promotion granted to the Junior Engineers/Assistant
Engineers by following rule of reservation but are only seeking fair
application of the ‘catch up rule’ in the fixation of seniority in the
category of ADEs.
28. Protection of the consequential seniority conferred on the
Assistant Engineers appointed as Assistant Divisional Engineers following
rule of reservation during the year 1994 was held to be unconstitutional in
the earlier round of litigation in Original Application No.2186/1996 dated
29.11.1996 before the Tamil Nadu Administrative Tribunal and the same was
confirmed by this Court in Special Leave Petition (Civil) No.24455/1996
titled Tr. J. Sabapathy And Ors. vs. D. Rajendran And Ors. decided on
18.12.1996. Pursuant to the same seniority of the Assistant Engineers
promoted as ADEs following rule of reservation had been lowered following
‘catch up rule’.
29. Now let us consider the crux of the dispute. While publishing
the impugned seniority list dated 29.04.2004, the ‘catch up rule’ was
applied among the Assistant Divisional Engineers appointed from Assistant
Engineers and consequential seniority was not given to SC/ST Assistant
Divisional Engineers appointed from Assistant Engineers; but the ‘catch up
rule’ was not applied to the Assistant Divisional Engineers promoted from
Junior Engineers and thus consequential seniority was given to the SC/ST
Assistant Divisional Engineers-accelerated promotees. According to the
State, ‘catch-up rule’ was applied to the Assistant Divisional Engineers
promoted from Assistant Engineers, since, Assistant Engineers were
recruited by Tamil Nadu Public Service Commission and at the time of their
initial recruitment as Assistant Engineers, rule of reservation was
strictly followed by Tamil Nadu Public Service Commission. In the counter
affidavit filed before the High Court, the State has taken the stand that
the ‘catch up rule’ was not applied in the case of JEs promoted as ADEs or
regarding their inter se seniority of Assistant Engineers and the Junior
Engineers since rule of reservation was not followed at the time of their
appointment as Junior Engineers.
30. Mr. Thiagarajan, learned Senior Counsel appearing for the
private respondents submitted that under the Right to Information Act,
information was sought for onbehalf of respondent U. Palaniappan and
Government furnished the Government Orders for temporary panel of Junior
Engineers for promotion as Assistant Divisional Engineers and the said
Government Orders furnished would clearly show that there is inadequate
representation of Scheduled Caste candidates in various category of Tamil
Nadu Highways Engineering Service. It was further submitted that there are
only two persons belonging to Scheduled Caste community promoted from the
rank of Junior Engineer after 17.06.1995 to the higher post of Assistant
Divisional Engineer and Divisional Engineer and of these two persons one
has been promoted to the post of Superintending Engineer and no other
person is available in the entire department and the inadequacy of
representation was rightly taken into consideration by the Government while
implementing the rule of reservation and consequential seniority.
31. The respondents’ submission regarding inadequacy of
representation of Scheduled Castes/Scheduled Tribes in the Tamil Nadu
Highways Engineering Service by itself is not sufficient to uphold the
inadequacy of representation of SCs/STs in the said service. Even after
Eighty-fifth Amendment, the State is duty bound to collect data so as to
assess the adequacy of representation of the Scheduled Caste candidates in
the service and based on the same the State should frame a policy/rules for
consequential seniority. No material is placed on record that the State of
Tamil Nadu has ever undertaken such exercise of collecting data of adequacy
of representation of the SC/ST candidates in the Tamil Nadu Highways
Engineering Service. In the absence of any rule conferring consequential
seniority in the State of Tamil Nadu ‘catch up rule’ is applicable even
amongst Junior Engineers promoted as ADEs following rule of reservation and
also for their inter-se seniority amongst AEs promoted as ADEs and JEs
promoted as ADEs following rule of reservation.
32. Respondents placed reliance on Rule 35 (aa) of Tamil Nadu State
and Subordinate Service Rules (General Rules) to contend that they are
entitled to consequential seniority in promotional position. Rule 35 (aa)
relied on by the respondents reads as under:-
“*(aa). The seniority of a person in a service, class, category or grade
shall where the normal method of recruitment to that service, class,
category or grade is by more than one method of recruitment, unless the
individual has been reduced to a lower rank as a punishment be determined
with reference to the date on which he is appointed to the service, class,
category or grade.
Provided that where the junior appointed by a particular method or
recruitment happens to be appointed to a service, class, category or grade
earlier than the senior appointed by the same method of recruitment, the
senior shall be deemed to have been appointed to the service, class,
category or grade on the same day on which the junior was so appointed:
Provided further that the benefit of the above proviso shall be available
to the senior only for the purpose of fixing inter-se seniority….” (*
Substituted in G.O. Ms. No.523, P & AR, dated 4.06.1982, w.e.f. 13.07.78)

Rule 35 (aa) of Tamil Nadu State and Subordinate Service (General) Rules
relied upon by the 3rd respondent is applicable only for normal
appointments to any service, class, category or grade and not reserved
category promotions. Rule 35 (aa) does not specifically provide for
consequential seniority to the accelerated promotees who were promoted
following the rule of reservation and Rule 35 (aa) is of no assistance to
the contesting respondents.
33. As noticed earlier, by application of Rule 12, it is evident
that the Assistant Engineers and Junior Engineers of reserved category got
promotion to the post of Assistant Divisional Engineer much earlier to the
general category candidates. At this juncture, we may refer to the
comparative table of service particulars of some of the appellants promoted
as ADEs from Assistant Engineers/Junior Engineers and the respondents in
the post of Assistant Engineer and Junior Engineer and their position in
the cadre of Assistant Divisional Engineer to appreciate the patent
discrimination as under:-
|Name and |Education|Date of |Date of |Sl. No. in|Date of |Sl. No. |
|status in |al |appointment |completio|the |appointment |in ADE |
|W.P.s., and|Qualifica|as A.E./J.E.|n of |classified|and service as|as on |
|Community |tion |and the name|probation|list of |ADE |01.04.20|
| | |of the | |A.E./J.E. | |04 |
| | |service to | |as on | | |
| | |which the | |01.01.93 | | |
| | |appointments| | | | |
| | |initially | | | | |
| | |made | | | | |
|S. |B.E., (C)|07/05/1980 |13.11.198|1180 |11/02/2002 |201 |
|Paneer-Selv| |* |4 A.N. | | | |
|am, | |T.N.H.E.S. | | | | |
|(Petitioner| |(* Tamil | | | | |
|No. 1 in | |Nadu | | | | |
|W.P. 33735 | |Highways | | | | |
|& 34077) - | |Engineering | | | | |
|MBC | |Service) | | | | |
|T.G. |B.E., |10/11/1978 |09.11.198|1159 |09/09/1999 |183 |
|Raja-sekara|(C) |T.N.H.E.S. |1 F.N. | | | |
|n | | | | | | |
|(Petitioner| | | | | | |
|No. 2 in | | | | | | |
|W.P. 33735 | | | | | | |
|& | | | | | | |
|34077)-MBC | | | | | | |
| V. |B.E. |30/04/1985 | |1666 |16/06/1998 (By|119 |
|Vivekananda| |T.N.H.E.S.S.|---------|(19) |recruitment by| |
|n | | |- | |transfer by | |
|(Respondent| | | | |applying Rule | |
|No. 3 in | | | | |12 of the | |
|W.P. 34077)| | | | |Tamil Nadu | |
|-S.C. | | | | |Highways | |
| | | | | |Engineering | |
| | | | | |Service) | |
|V. |D.C.E. |29/04/1985 | |1666 | |120 |
|Appadurai | |T.N.H.E.S.S.|---------|(22) |29/04/1998 | |
|(Respondent| | | | |(By | |
|No. 4 in | | | | |recruitment by| |
|W.P. 34077)| | | | |transfer by | |
|–S.C. | | | | |applying Rule | |
| | | | | |12 of the | |
| | | | | |Tamil Nadu | |
| | | | | |Highways | |
| | | | | |Engineering | |
| | | | | |Service) | |
|U.Palaniapp|D.C.E |13/04/1987 |14.06.198|1477 |12/05/1999 |150 |
|an | |T.N.H.E.S.S |9 | |(By | |
|(Respondent| | | | |recruitment by| |
|No. 3 in | | | | |transfer by | |
|W.P. 33735 | | | | |applying Rule | |
|& 39142) | | | | |12 of the | |
|–S.C. | | | | |Tamil Nadu | |
| | | | | |Highways | |
| | | | | |Engineering | |
| | | | | |Service) | |

(As extracted in the judgment of the Single Judge)

If we look at the above comparative table of the service particulars of the
appellants and the respondents, it is seen that the contesting respondents
U. Palaniappan joined the service almost seven years after the appellants,
his seniority is automatically accelerated at an unprecedented rate and as
on 01.04.2004 his seniority rank as ADE is 150 and seniority of V.
Appadurai is 120. The appellants who are qualified and seniors than the
contesting respondents are placed much below in rank in comparison to the
person belonging to the reserved class promotees who were promoted
following the rule of reservation. It is to be noted that the private
respondents in the present case have been promoted temporarily under Rule
39 (a) and Rule 10 (a) (i) of the General Rules with the condition that
their inclusion in the promotional order shall not confer on them any right
whatsoever in the service. Determination of seniority is a vital aspect in
the service career of an employee and his future promotion is dependent on
this. Therefore, determination of seniority must be based on some
principles which are just and fair. In the absence of any policy decision
taken or rules framed by the State of Tami Nadu regarding Tamil Nadu
Highways Engineering Service, accelerated promotion given to the
respondents following rule of reservation in terms of Rule 12 will not give
them consequential accelerated seniority.
34. Appellants were appointed as Assistant Engineers directly,
while the respondents were initially appointed as Junior Engineers. Hence
according to the respondents, there was no common seniority between the
Assistant Engineers belonging to general category and Junior Engineers
belonging to reserved class and therefore promotion of JEs as ADEs
applying Rule 12 is of no relevance to the appellants. This contention does
not merit acceptance. Both the Assistant Engineers in the Tamil Nadu
Engineering Service and the Junior Engineers in the Tamil Nadu Engineering
Subordinate Service are feeder categories for filling up higher post of the
Assistant Divisional Engineer in the ratio of 3:1 between them. Although,
Assistant Engineers and Junior Engineers are presently two distinct
categories, prior to 1993, both Assistant Engineers and Junior Engineers
were in one category of service-Tamil Nadu Highways Engineering Subordinate
Service. Only after G.O.Ms.No.807, Public Works (HK) Department dated
24.05.1993, the post of Assistant Engineer was raised to the level gazetted
status and they were brought in to State Service/Tamil Nadu Highways
Engineering Service. For promotion, even though two separate seniority
lists are prepared for each category, they are actually of the same cadre
and the respondents cannot contend that if Junior Engineers are promoted as
ADEs following rule of reservation applying Rule 12, it does not affect the
services of the Assistant Engineers.
35. In the absence of any provision for consequential seniority
in the rules, the ‘catch up rule’ will be applicable and the roster-point
reserved category promotees cannot count their seniority in the promoted
category from the date of their promotion and the senior general candidates
if later reach the promotional level, general candidates will regain their
seniority. The Division Bench appears to have proceeded on an erroneous
footing that Article 16 (4A) of the Constitution of India automatically
gives the consequential seniority in addition to accelerated promotion to
the roster-point promotees and the judgment of the Division Bench cannot be
sustained.
36. In the result, the impugned judgment is set aside and these
appeals are allowed. State Government-respondent Nos. 1 and 2 are directed
to revise the seniority list of Assistant Divisional Engineers applying the
‘catch up rule’ within four months. Pursuant to the impugned judgment of
the Division Bench of Madras High Court, if any further promotion had been
granted to the Assistant Divisional Engineers promoted from the rank of
Junior Engineers following rule of reservation with consequential
seniority, the same shall be reversed. Further promotion of Assistant
Divisional Engineers shall be as per the revised seniority list. The
parties shall bear their own costs.

..……………………J.
(T.S. THAKUR)

….……………………J.
(R. BANUMATHI)
New Delhi;
August 27, 2015

Saturday, August 29, 2015

"A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. Thus the strict parameters governing an interim injunction do not have full play in matters of custody." The contention of the appellant in this respect is also supported by the decision in Bal Krishna Pandey's case (supra). But as we are not dealing with the question of guardianship, but only with the issue of interim custody, we see no reason why the preference of the elder child shall be overlooked. It may be noted that the Family Court had considered fact that the younger child had instinctively approached his father while he met him in the Court premises while vacating the interim order of injunction. The second child who is just 4 years old cannot form an intelligent opinion as to who would be the right person to look after him and, hence, we must give weight to the preference that Athiya had expressed.We find it fit, however, to modify the visitation rights granted to the appellant. He shall be allowed to visit the children on Saturdays as well between 9 am and 5 pm. The order of the High court is modified to the extent indicated above, and the order of the Family Court dated 11th of June, 2007 vacating its injunction order is set aside. The Family Court is hereby directed to dispose of the case relating to the guardianship of the two children after adducing evidence by both the parties (both oral and documentary) at an early date, preferably within six months from the date of supply of a copy of this order to it. We, however, make it clear that the observations made in the order of the High Court as well as by this Court, if there be any, shall not be taken to be final while deciding the original application filed under Sections 7, 9 and 17 of the Act and the Family Court shall be at liberty to proceed with the disposal of the said proceeding independently of any of the observations made by this Court in this judgment.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11 OF 2010
(Arising out of SLP ) No. 24148 of 2007)

Athar Hussain. -----Appellant

Versus

Syed Siraj Ahmed & Ors. ----Respondents

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. This appeal is directed against the judgment and order

dated 8th of October, 2007 passed by the High Court of

Karnataka at Bangalore by which the High Court had set aside

the order dated 11th of June, 2007 of the Family Court,

Bangalore vacating its order of injunction dated 21st of April,

2007 passed against the appellant in G.W.C. No. 64 of 2007

preventing him from interfering with the custody of his

children with the respondents.

3. The appellant is the father of the minor children in whose

respect interim custody and guardianship have been sought

1
for. The respondent No.1 is the maternal grandfather of the

two minor children of the appellant and respondent Nos. 2, 3

and 4 are their maternal aunt and uncles.

4. The appellant married one Umme Asma, daughter of

respondent No. 1, in accordance with Islamic rites and

customs on 31st of March, 1993. Two children were born out of

the wedlock, Athiya Ali, aged about 13 years and Aayan Ali ,

aged about 5 years. Their mother Umme Asma died on 16th of

June, 2006. Subsequent to the death of Umme Asma, the

mother of two minor children, the appellant again married to

one Jawahar Sultana on 25th of March, 2007 who in the

pending proceeding had filed an application before the Family

Court for her impleadment in the same.

5. A proceeding was initiated on 21st of April, 2007 at the

instance of the respondents under Sections 7, 9 and 17 of the

Guardian and Wards Act, 1890 (hereinafter referred to as `the

Act') in the Court of the Principal Family Judge, Bangalore

which came to be registered as G.W.C.No.64 of 2007. In the

aforesaid pending proceeding under the Act, an application

was filed under Section 12 of the Act read with Order 39 Rule

2
1 and 2 of the Code of Civil Procedure (in short `the Code') in

which interim protection was prayed for of the persons and

properties of the minor children and also for an order of

injunction restraining the appellant from interfering or

disturbing the custody of two children till the disposal of the

application filed under Sections 7, 9 and 17 of the Act. The

case that was made out by the respondents in the affidavit

accompanying their application for injunction filed under

Section 12 of the Act read with Order 39 Rule 1 and 2 of the

Code was a follows :-

6. On the same day on which the respondents filed the

applications for being appointed as guardians and for interim

injunction against the appellant, i.e. on 21st of April, 2007, the

Family Court disposed of the application under section 12

read with Order 39 Rule 1 and 2 of the CPC, and passed an ex

parte interim order restraining the appellant from interfering

with the custody of the two children of the appellant.

7. Feeling aggrieved, the appellant filed an application

against the order of the family court under Order 39 Rule 4 of

the Code praying for vacation of interim order of injunction

3
passed against him. In the Counter Affidavit accompanying

the application filed on 28th of April, 2007 to vacate the interim

order of injunction, he denied all averments made in the

application filed by the respondents as incorrect and

fabricated. It is not in dispute that the appellant is the father

and natural guardian of the children. While respondent no.1 is

aged about 72 years and is retired and hence is in no position

to look after his children, respondent no.2 is living separately

after his marriage; respondent nos. 3 and 4 are nearing the

age of marriage and would go ahead with their own lives once

married. Further respondent no.1 has another son whose wife

divorced him on account of harassment for dowry and another

daughter who was mentally retarded. These heavy

responsibilities which already lie on the respondent make him

unfit as a guardian of his children. The only motive of the

respondents is to gain the property that the appellant had

purchased in favour of Umme Asme.

8. Pursuant to a telephonic request made by respondent

no.3, he dropped his children at their place on 21st of April,

2007. When he went back to collect them on 22nd of April,

4
2007, he was informed that they would be back only at night.

On 23rd of April, 2007, he was told that the children had gone

to Ooty and would return after a few days. Since the appellant

had reasons to suspect the bonafide of the respondents, he

lodged a complaint before the Inspector of Police, J.C. Nagar,

Bangalore on 23rd of April, 2007. The respondents who were

summoned to the police station gave an undertaking to the

effect that the children would be back on 24th of April, 2007. It

is alleged that though the respondents had procured the

interim order of injunction on 21st of April, 2007 itself, they did

not inform either the appellant or the Police authorities until

25th of April, 2007 on which day they produced the copy of the

interim order to the appellant.

9. Appellant further alleged that his daughter had been

missing classes as she was unduly retained by the

respondents, who had no concern whatsoever with respect to

the same.

10. The death certificate clearly showed leukemia as the sole

cause of death of Umme Asma, contrary to the allegations of

the respondents. He had deeply loved his wife and as a token

5
of his love, had purchased a property in her name on which he

constructed house entirely in accordance with her wishes.

Contrary to what the respondents had alleged, all the

expenses for the treatment of his wife and the education of the

children were borne by the appellant. His relationship with his

deceased wife and the children were indeed cordial. In order to

secure education of high quality for his daughter, he got her

admitted into a good school and had borne all related

expenses, as proved from the receipts issued by the school

authorities. He had also obtained an insurance policy in the

name of his daughter.

11. It is for the vengeance of the appellant's refusal to marry

respondent no.3 who wished to marry him after the death of

her sister, that they had filed the application claiming custody

and guardianship of the children. The photographs produced

before the Court were taken when the appellant himself took

the respondents on an excursion along with his family in his

own car. The mark sheets produced by the respondents bore

forged signatures of the appellant whereas the documents

bearing his own signature were not produced.

6
12. In short, the appellant submitted that in view of

suppression and concealment of material facts on part of the

respondents, they were not entitled to the equitable relief of

injunction. Moreover, he had a prima facie case and the

balance of convenience stood in his favour. Irreparable injury

would be caused to him as the father of the minor children

who would not be safe in the hands of the respondents.

13. The family court by its order dated 11th of June, 2007

vacated the interim order of injunction granted on 21st of April

2007. The Court found that the respondents had neither

prima facie case nor balance of convenience in their favour,

nor vacating the ex parte interim order would cause

irreparable injury to them. It was also the finding of the family

court that the respondents did not approach the Court with

clean hands. The Court found that in support of their

contention that Umme Asma died due to the assault cast upon

by the appellant, the respondents had not been able to

produce any material evidence; nor was any case filed against

the appellant. This appears in contrast to their contention that

after the death of Umme Asma, her relatives had enquired

7
about the marks on her face which occurred when the

appellant had hit her. If this was the case, the respondents

would have initiated an enquiry much before, not when almost

ten months had expired after the death of Umme Asma. This

prolonged silence, according to the trial court, renders the

version of the appellant probable that it is to wreck vengeance

towards him who refused to marry the respondent no.3 that

the entire proceedings had been launched. The death report

produced by the appellant, on the other hand, supports the

version of the appellant of bone cancer being the cause of his

wife's death. The fact that he bore with all medical expenses is

also supported by evidence. The appellant has also been able

to produce the sale deed of the property which he claims to

have purchased in his wife's name out of his love and affection

for her.

14. The undertaking given by the respondents before Police

Authorities with respect to the complaint filed against them by

the appellant also strengthens the version of the appellant that

as a matter of course, the children stayed with the appellant

and that it was the respondents who took them away without

8
his sanction. It is pertinent to note that the respondents did

not produce the temporary order of injunction at the time they

were asked to file the said undertaking to the Police

Authorities. The various receipts produced by the appellant as

evincing the expenses he incurred for his wife and children

were also considered. Thus it was found that the respondents

had no prima facie case.

15. The Family Court found the balance of convenience also

leaning in favour of the appellant, who is admittedly the

natural guardian of the children. The photographs produced

by both the parties were considered as indicating the bond the

children shared with both. It was found that they were also

happy in the company of their step mother. Though Athiya

had stated that she was not willing to go with her father, the

Family Court felt that it could be no consequence as she was

not old enough to form a mature opinion and was susceptible

to tutoring. The fact that the son went to the appellant when

he saw him in the Court premises indicated that the children

were close to the appellant. Accordingly, balance of

convenience was found tilting in favour of the appellant.

9
16. Irreparable injury will be caused to the father if he is

denied interim custody as he is the natural guardian of the

children, the care and concern for whom he had established in

various ways. Keeping in view the fact that welfare of the

children is the paramount consideration, it was noted that the

respondent nos. 2 and 3 would get married and start living

separately while respondent no.1 is an aged person. Therefore,

the appellant was more competent and fit than all to take care

of the children. In order not to deprive the children of the love

and affection of their maternal relatives, the appellant had

agreed to leave the children at the respondents' place on every

alternate Saturday and for five days at the beginning of the

summer vacation which shows his magnanimity and

generosity.

17. The contentions of the respondents were not supported

by documentary evidence and, therefore, the Family Court was

of the opinion that they had not approached the Court with

clean hands. Hence, the equitable remedy of injunction could

not be granted to them.

10
18. Therefore, by its order dated 11th of June, 2007, the

Family Court vacated the ad-interim order of temporary

injunction restraining the appellant from interfering with the

custody of the children with the respondents.

19. Aggrieved by this order, the respondents filed a Writ

Petition which came to be numbered as W.P. No. 9177 of 2007

before the High Court of Karnataka at Bangalore. Before the

High Court, the respondents contended that the parties would

be governed by Mohammaden Law which dictates that in the

absence of the mother, maternal grand parents shall be the

guardian of minor children. It was further contended that the

second marriage of the appellant disentitles him to the

custody of children. Further, when the children are capable of

forming their opinion, they should be allowed to exercise their

option with respect to which of the parties they would go with.

The well being of the children which is the paramount

consideration in matters of custody was not taken into

account by the Family Court whose order is liable to be set

aside on this count alone.

11
20. The appellant, in response to these submissions,

contended that the High Court could not interfere with the

findings of the Family Court unless serious infirmity is proven.

The decisions cited by the respondents were distinguished on

the ground that these decisions concerned findings that were

recorded after a full fledged trial and not an order passed as

an ad-interim relief granting custody to one of the parties.

21. On consideration of these arguments, the High Court by

its order dated 8th of October 2007 had set aside the order of

the Family Court by which it had vacated the interim order of

injunction and passed the following directions:

a. The impugned order is quashed.

b. The respondent father will have visiting rights and

shall visit his two children on every Sunday between

9 a.m. and 5 p.m. The father is permitted to take

out the children to any place of his and children's

choice and shall bring back the children to

petitioner's house. This arrangement shall continue

pending disposal of the proceedings before the

learned Family Judge.

12
c. Having regard to the sensitive issue involved i.e. as

to the guardianship of the minor children, the

learned Family Judge is directed to conclude the

proceedings within six months from the date of

receipt of the copy of this order.

d. Any observation made during the course of this

order is only for the purpose of considering as to

where the children should stay during the pendency

of the proceedings. It shall not be treated as a

finding on the merits of the case. The learned

Family Judge shall not be swayed by any of the

observations made during the course of this order.

22. The High Court in its impugned judgment had held that

while appointing the guardian or deciding the matter of

custody of the minor children during the pendency of

guardianship proceedings, the first and foremost consideration

for the Court is the welfare of the children. The factors that

must be kept in mind while determining the question of

guardianship will apply with equal force to the question of

interim custody. It was observed that the Family Court should

13
have delved a little deeper into the matter and ascertained

where the interest of the children lay, instead of recording

abstract findings on questions of prima facie case, balance of

convenience and irreparable injury.

23. The terms on which the appellant and his deceased wife

were, the manner in which the respondents obtained the

custody of the children are questions that should be

determined during the course of trial.

24. Though when the children's father is not unfit otherwise

he shall be the natural guardian, a child cannot be forced to

stay with his/her father. According to the High Court, merely

because the father has love and affection for his children and

is not otherwise shown unfit to take care of the children, it

cannot be necessarily concluded that welfare of the children

will be taken care of once their custody is given to him. The

girl had expressed a marked reluctance to stay with her father.

The High Court was of the opinion that the children had

developed long standing affection towards their maternal

grandfather, aunt and uncles. It will take a while before they

develop the same towards their step mother. The sex of the

14
minor girl who would soon face the difficulties of attaining

adolescence is an important consideration, though not a

conclusive one. She will benefit from the guidance of her

maternal aunt, if custody is given to the respondents, which

the appellant will be in no position to provide. Further, there is

a special bonding between the children and it is desirable that

they stay together with their maternal grandfather, uncles and

aunt.

25. In case of custody of the minor children, the Family Law,

i.e. the Mohammedan Law would apply in place of the Act.

Considering the provisions under Section 353 of the

Mohammedan Law, the High Court had held that the

preferential rights regarding the custody of the minor children

rests with the maternal grandparents. After making a doubtful

proposition that in case of a conflict between personal law and

welfare of the children the former shall prevail, the High Court

held that in the case at hand there is no such conflict.

26. For the reasons aforementioned, the High Court by its

impugned order set aside the order of the Family Court,

15
Bangalore which vacated the interim order of injunction

issued against the appellant.

27. It is this order of the High Court, which is challenged

before us by way of special leave petition which on grant of

leave has been heard by us in the presence of the learned

counsel appearing on behalf of the parties.

28. It was the contention of the appellant before us that the

Act will apply to the present case because there is a conflict

between the preferential guardian in Mohammedan Law and

the Act. It was pointed out that while deciding the custody of

the minor children, the welfare of the children had to be taken

into consideration and that it was guaranteed by the Act. They

have placed their reliance on the case of Rafiq v. Bashiran

and ors, [AIR 1963 Rajasthan 239]. The Rajasthan High Court

in the cited case held that where the provisions of the personal

law are in conflict with the provisions of the Guardians and

Wards Act the latter shall prevail over the former.

29. Relying on the case of B.N.Ganguly v. C.H.Sarkar, [AIR

1961 MP 173] it was contended by the learned counsel for the

16
appellant that there is a presumption that parents will be able

to exercise good care in the welfare of their children.

30. It was argued by the learned counsel on behalf of

respondents that the impugned order warrants no

interference. Before passing the impugned order, the learned

Judge had spent over one hour with the children to ascertain

their preferences. The children have been living with the

respondents since their mother's death in June, 2006 as the

High Court had stayed the order of the Family Court vacating

the injunction order. While the respondents had been

complying with the visitation rights granted to the appellant,

the children were not happy with the treatment meted out to

them during the time they spent with their father and

stepmother. In contrast, respondent no. 3, contrary to the

apprehensions expressed by the appellant has stated on

record that she had no intention to marry and would devote

her life towards the welfare of the children. Respondents

further asserted that the cases of Rafiq v. Bashir (supra) and

B.N. Ganguly (supra) are not applicable to the facts of this

case.

17
31. We have heard the learned counsel for both the parties

and examined the impugned order of the High Court and also

the orders passed by the Family Court. After considering the

materials on record and the impugned order, we are of the

view that at this stage the respondents should be given interim

custody of the minor children till the disposal of the

proceedings filed under Sections 7, 9 and 17 of the Act.

Reasons are as follows:

32. Section 12 of the Act empowers courts to "make such

order for the temporary custody and protection of the person

or property of the minor as it thinks proper." In matters of

custody, as well settled by judicial precedents, welfare of the

children is the sole and single yardstick by which the Court

shall assess the comparative merit of the parties contesting for

custody. Therefore, while deciding the question of interim

custody, we must be guided by the welfare of the children

since Section 12 empowers the Court to make any order as it

deems proper.

33. We are mindful of the fact that, as far as the matter of

guardianship is concerned, the prima facie case lies in favour

18
of the father as under Section 19 of the GWC Act, unless the

father is not fit to be a guardian, the Court has no jurisdiction

to appoint another guardian. It is also true that the

respondents, despite the voluminous allegations leveled

against the appellant have not been able to prove that he is

not fit to take care of the minor children, nor has the Family

Court or the High Court found him so. However, the question

of custody is different from the question of guardianship.

Father can continue to be the natural guardian of the

children; however, the considerations pertaining to the welfare

of the child may indicate lawful custody with another friend or

relative as serving his/her interest better. In the case of Rosy

Jacob v. Jacob A. Chakramakkal, [(1973) 3 S.C.R. 918],

keeping in mind the distinction between right to be appointed

as a Guardian and the right to claim custody of the minor

child, this Court held so in the following oft-quoted words:

"Merely because the father loves his children and is
not shown to be otherwise undesirable cannot
necessarily lead to the conclusion that the welfare of
the children would be better promoted by granting
their custody to him as against the wife who may
also be equally affectionate towards her children and
otherwise equally free from blemish, and, who, in

19
addition, because of her profession and financial
resources, may be in a position to guarantee better
health, education and maintenance for them."

34. In the case of Mt. Siddiqunnisa Bibi v. Nizamuddin

Khan and Ors., [AIR 1932 All 215], which was a case

concerning the right to custody under Mohammaden Law, the

Court held:

"A question has been raised before us whether the
right under the Mahomedan law of the female
relation of a minor girl under the age of puberty to
the custody of the person of the girl is identical with
the guardianship of the person of the minor or
whether it is something different and distinct. The
right to the custody of such a minor vested in her
female relations, is absolute and is subject to several
conditions including the absence of residing at a
distance from the father's place of residence and
want of taking proper care of the child. It is also clear
that the supervision of the child by the father
continues in spite of the fact that she is under the
care of her female relation, as the burden of
providing maintenance for the child rests exclusively
on the father."

35. Thus the question of guardianship can be independent of

and distinct from that of custody in facts and circumstances of

each case.

20
36. Keeping in mind the paramount consideration of welfare

of the children, we are not inclined to disturb their custody

which currently rests with their maternal relatives as the

scope of this order is limited to determining with which of the

contesting parties the minors should stay till the disposal of

the application for guardianship.

37. The appellant placed reliance on the case of R.V.

Srinath Prasad v. Nandamuri Jayakrishna [AIR 2001 SC

1056]. This Court had observed in this decision that custody

orders by their nature can never be final; however, before a

change is made it must be proved to be in the paramount

interest of the children. In that decision, while granting interim

custody to the father as against the maternal grandparents,

this Court held:

"The Division Bench appears to have lost sight of
the factual position that the time of death of their
mother the children were left in custody of their
paternal grand parents with whom their father is
staying and the attempt of the respondent no.1 was
to alter that position before the application filed by
them is considered by the Family Court. For this
purpose it was very relevant to consider whether
leaving the minor children in custody of their father
till the Family Court decides the matter would be so
detrimental to the interest of the minors that their

21
custody should be changed forthwith. The
observations that the father is facing a criminal
case, that he mostly resides in USA and that it is
alleged that he is having an affair with another
lady are, in our view, not sufficient to come to the
conclusion that custody of the minors should be
changed immediately."

What is important for us to note from these observations

is that the Court shall determine whether, in proceedings

relating to interim custody, there are sufficient and compelling

reasons to persuade the Court to change the custody of the

minor children with immediate effect.

38. Stability and consistency in the affairs and routines of

children is also an important consideration as was held by this

Court in another decision cited by the learned counsel for the

appellant in the case of Mausami Moitra Ganguli v. Jayant

Ganguli, [AIR 2008 SC 2262]. This Court held:

"We are convinced that the dislocation of
Satyajeet, at this stage, from Allahabad, where he
has grown up in sufficiently good surroundings,
would not only impede his schooling, it may also
cause emotional strain and depression on him."

39. After taking note of the marked reluctance on part of the

boy to live with his mother, the Court further observed:

22
"Under these circumstances and bearing in mind
the paramount consideration of the welfare of the
child, we are convinced that child's interest and
welfare will be best served if he continues to be in
the custody of the father. In our opinion, for the
present, it is not desirable to disturb the custody of
Master Satyajeet and, therefore, the order of the
High Court giving his exclusive custody to the father
with visitation rights to the mother deserves to be
maintained."

40. The children have been in the lawful custody of the

respondents from October, 2007. In the case of Gaurav Nagpal

v. Sumedha Nagpal, [(2009) 1 SCC 42], it was argued before

this Court by the father of the minor child that the child had

been in his custody for a long time and that a sudden change

in custody would traumatize the child. This Court did not find

favour with this argument. This Court observed that the father

of the minor child who retained the custody of the child with

him by flouting Court orders, even leading to institution of

contempt proceedings against him, could not be allowed to

take advantage of his own wrong. The case before us stands

on a different footing. The custody of the minor children with

the respondents is lawful and has the sanction of the order of

the High Court granting interim custody of the children in

23
their favour. Hence, the consideration that the custody of the

children should not undergo an immediate change prevails.

The question with whom they remained during the period from

the death of their mother till the institution of present

proceedings is a matter of dispute between the parties and we

are not in a position to reach a conclusion on the same

without going into the merits of the matter. At any rate, the

children are happy and are presumably taken care of with love

and affection by the respondents, judging from the reluctance

on part of the girl child to go with her father. She might attain

puberty at any time. As the High Court has rightly observed, it

may not be in the interests of the children to separate them

from each other. Hence, at this juncture, we are not inclined

to disturb the status quo, as we are only concerned with the

question of interim custody at this stage.

41. The learned counsel for the appellant has placed reliance

on the case of Rafiq v. Smt. Bashiran and Another [supra].

In this case, the High Court had set aside the order of the Civil

Judge granting the custody of the child to her mother's

paternal aunt, while the father was not proven to be unfit.

24
Quoting from Tyabji's Mahomedan Law, Third Edition, Section

236 (p. 275) the Court observed:

"The following persons have a preferential right over the

father to the custody of (sic)minor girl before she attains

the age of puberty.

1. Mother's mother

2. Father's mother

3. Mother's grandmother howsoever high

4. Father's grandmother howsoever high

5. Full sister

6. Uterine sister

7. Daughter of full sister, howsoever low.

8. Dauther of uterine sister, howsoever low.

9. Full maternal aunt, howsoever high.

10.Uterine maternal aunt, howsoever high.

11.Full paternal aunt, howsoever high.

42. However, the High Court of Rajasthan held that in the

light of Section 19 which bars the Court from appointing a

guardian when the father of the minor is alive and not unfit,

25
the Court could not appoint any maternal relative as a

guardian, even though the personal law of the minor might

give preferential custody in her favour.

43. As is evident, the aforementioned decision concerned

appointment of a guardian. No doubt, unless the father is

proven to be unfit, the application for guardianship filed by

another person cannot be entertained. However, we have

already seen that the question of custody was distinct from

that of guardianship. As far as matters of custody are

concerned, the Court is not bound by the bar envisaged under

Section 19 of the Act. In our opinion, as far as the question of

custody is concerned, in the light of the aforementioned

decisions, the personal law governing the minor girl dictates

her maternal relatives, especially her maternal aunt, shall be

given preference. To the extent that we are concerned with the

question of interim custody, we see no reason to override this

rule of Mohammedan Law and, hence, a prima facie case is

found in favour of the respondents.

44. Further, the balance of convenience lies in favour of

granting custody to the maternal grandfather, aunt and uncle.

26
A plethora of decisions of this Court endorse the proposition

that in matters of custody of children, their welfare shall be

the focal point. Once we shift the focus from the rights of the

contesting relatives to the welfare of the minor children, the

considerations in determining the question of balance of

convenience also differ. We take note of the fact that

respondent no.3, on record, has stated that she has no

intention to get married and her plea that she had resigned

from her job as a technical writer to take care of the children

remains uncontroverted. We are, hence, convinced that the

respondents will be in a position to provide sufficient love and

care for the children until the disposal of the guardianship

application. The second marriage of the appellant, though a

factor that cannot disentitle him to the custody of the

children, yet is an important factor to be taken into account. It

may not be appropriate on our part to place the children in a

predicament where they have to adjust with their step-mother,

with whom admittedly they had not spent much time as the

marriage took place only in March, 2007, when the ultimate

outcome of the guardianship proceedings is still uncertain.

27
The learned counsel for the appellant placed reliance on the

case of Bal Krishna Pandey v. Sanjeev Bajpayee [AIR 2004

UTR 1] wherein the maternal grandfather of the minor

contested with the father of the minor for custody of a girl

aged about 12 years. The Uttranchal High court in that case

gave the custody of minor to the father rejecting the

contention of grandfather (appellant) that the father

(respondent) after his remarriage will not be in a position to

give fair treatment to the minor. However, in that case, the

second wife of the father had been medically proven as unable

to conceive. Hence, the question of a possible conflict between

her affection for the children whose custody was in dispute

and the children she might bear from the father did not arise.

In the case before us, the situation is not the same and the

possibility of such conflict does have a bearing upon the

welfare of the children.

45. As this is a matter of interim custody till the final

disposal of the application GWC No. 64 of 2007, we are of the

opinion that the interests of the children will be duly served if

their current residence is not disturbed and a sudden

28
separation from their maternal relatives does not come on

their way. Irreparable injury will be caused to the children if

they, against their will, are uprooted from their present

settings.

46. The learned counsel for the appellant placed strong

reliance in the case of Hassan Bhatt v. Ghulam Mohamad

Bhat [AIR 1961 J & K 5] which held that the words "subject

to the provisions of this section" in sub-section 1 of Section 17

of the Act clearly indicates that the consideration of the

welfare of the minor should be the paramount factor and

cannot be subordinated to the personal law of the minor. The

view expressed by the High Court is clearly correct. As far as

the question of interim custody is concerned, we are of the

view that there is no conflict between the welfare of the

children and the course of action suggested by the personal

law to which they are subject.

47. At this juncture, we may mention the following factors to

which the learned counsel for the appellant invites our

attention. In the present case, respondent no. 1 is an old

person aged about 72 years and respondent no. 2 is already

29
married, living with his wife and children. Respondent no. 3

and 4 are unmarried and are of marriageable age. Respondent

no. 3, the maternal aunt of the children, will go to live with her

husband after marriage. Respondent No. 4 after his marriage

may or may not live with his father. There is nothing on

record to show that the appellant mistreated the deceased

mother of minor children. We cannot express our views on the

correctness of these averments. These are the matters that

must be gone into when the Family Court disposes of the

application for guardianship filed by the Respondents, and not

at this stage.

48. According to the appellant, from the fact that the

respondents raised the issue of death of his wife 10 months

after her death and one month after he refused the marriage

offer of Respondent No. 3, it must be inferred that the

respondents have raised this issue merely to obtain the

custody of children and that the respondents did not come to

court with clean hands. As far as the question of denying the

respondents the interim custody of children on the ground

30
that they had not approached the Court with clean hands, we

are constrained to say that we are not in a position to

conclusively infer the same. The alleged refusal on part of the

appellant to marry respondent no.3 which is said to have led

the respondents to file the application for guardianship, is

again question of fact which is yet to be proved. In Nil Ratan

Kundu and Anr. Vs. Abhijit Kundu, [(2008) 9 SCC 413] this

Court had enumerated certain principles while determining

the custody of a minor child. This Court under Paragraph 56

observed:

"A Court while dealing with custody cases, is
neither bound by statutes nor by strict rules of
evidence or procedure nor by precedents. In selecting
proper guardian of a minor, the paramount
consideration should be the welfare and well-being
of the child. Thus the strict parameters governing an
interim injunction do not have full play in matters of
custody."

49. The learned counsel for the appellant again relied on a

decision of B.N.Ganguly (supra) in which case the High Court

of Madhya Pradesh had held that there is a presumption in

law that parents will be able to exercise good care in the

welfare of their children if they do not happen to be unsuitable

31
as guardians. The facts of that case are quite different from

the one at hand. The contesting guardians in that case where

contesting on the basis of an alleged adoption, against the

parents of the child. Both the parents had joined in making

the application and nothing had been said against their habits

or way of living. The case stands altogether on a different

footing.

50. The High court had relied heavily on the preference made

by Athiya Ali who then was 10 to 11 years old. In the opinion

of High Court, she was capable of making intelligent

preference. It may be true that 11 years is a tender age and

her preference cannot be conclusive. The contention of the

appellant in this respect is also supported by the decision in

Bal Krishna Pandey's case (supra). But as we are not

dealing with the question of guardianship, but only with the

issue of interim custody, we see no reason why the preference

of the elder child shall be overlooked. It may be noted that the

Family Court had considered fact that the younger child had

instinctively approached his father while he met him in the

32
Court premises while vacating the interim order of injunction.

The second child who is just 4 years old cannot form an

intelligent opinion as to who would be the right person to look

after him and, hence, we must give weight to the preference

that Athiya had expressed.

51. We find it fit, however, to modify the visitation rights

granted to the appellant. He shall be allowed to visit the

children on Saturdays as well between 9 am and 5 pm.

52. The order of the High court is modified to the extent

indicated above, and the order of the Family Court dated 11th

of June, 2007 vacating its injunction order is set aside. The

Family Court is hereby directed to dispose of the case relating

to the guardianship of the two children after adducing

evidence by both the parties (both oral and documentary) at

an early date, preferably within six months from the date of

supply of a copy of this order to it.

53. We, however, make it clear that the observations made in

the order of the High Court as well as by this Court, if there be

33
any, shall not be taken to be final while deciding the original

application filed under Sections 7, 9 and 17 of the Act and the

Family Court shall be at liberty to proceed with the disposal of

the said proceeding independently of any of the observations

made by this Court in this judgment.

54. The appeal is thus dismissed. There will be no order as to

costs.

55. In view of the above judgment, the application for

impleadment becomes infructuous and is dismissed as such.

.............................J.
[Tarun Chatterjee]

New Delhi; ............................J.
January 05, 2010. [V.S.Sirpurkar]

34

35

Thursday, August 27, 2015

The primary conditions for grant of disability pension are mentioned under Regulation 173 of the Pension Regulations for the Army 1961. Regulation 173 reads as under:- “Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty or is assessed at 20% or over.”=The above contention does not merit acceptance. By perusal of record issued by Medical Board AFMSF- 16/17, it is seen that the assessment by the Board is recommendatory in nature and is subject to acceptance by the Pension Sanctioning Authority. It is also mentioned in the Medical Abstract Records as:- “1. Though the disablement has been mentioned in percentage in para 6 of Part V, this does not mean eligibility for disability pension since the Invalidating Disabilities is/are neither attributable to nor aggravated by service.”= When the opinion of the assessment by the Board is recommendatory in nature and is subject to acceptance by the Pension Sanctioning Authority, the opinion of the Medical Board by itself cannot confer right upon the respondent to claim disability pension. = The respondent went for six weeks sick leave and reported back for review and invalidated from service with effect from 28.2.2006. After the accident when the respondent was not actually performing military service, the opinion of the Medical Board “aggravated due to stress and strain of military service” does not appear to be in proper perspective. After the accident, when the respondent was not actually performing his duties and therefore disability cannot be attributed to military service nor can it be said to have been aggravated due to stress and strain of military service. In the light of the above discussion, it is clear that the injury suffered by the respondent has no causal connection with the military service. The tribunal failed to appreciate that the accident resulting in injury to the respondent was not even remotely connected to his military duty and it falls in the domain of an entirely private act and therefore the impugned orders cannot be sustained.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6583 OF 2015
(Arising out of CAD No.13923 of 2014)

UNION OF INDIA & ORS. ..Appellants

Versus

3989606 P, EX-NAIK VIJAY KUMAR ..Respondent

J U D G M E N T

R. BANUMATHI, J.

Delay condoned.
2. This appeal is filed against the order dated 13.07.2011 in
Original Application No.248 of 2011 and order dated 31.10.2012 in
M.A.Nos.795 and 796 of 2012 passed by the Armed Forces Tribunal, Regional
Bench, Chandigarh (for short ‘the tribunal’) whereby the tribunal allowed
the application filed by the respondent observing that the respondent is
entitled to get disability pension for 75% disability from the date of his
invalidation.
3. Brief facts which led to the filing of this appeal are as
under:- On 25.02.1989, the respondent was enrolled in Indian Army from
Branch Recruiting Office Palampur and after completion of his basic
Military Training at Dogra Regiment, the respondent was posted to 12 Dogra
on 05.01.1990. The respondent was granted thirty days annual leave from
14.05.2005 to 12.06.2005. However, during the leave period, on 19.05.2005
the respondent went from Himachal Pradesh to Jalandhar Cantt where his
sister resides for making purchase of ornaments and clothes and articles
for marriage of his younger brother. On the same day, on 19.05.2005 in
Jalandhar at the house of his sister which was on second floor at about
8.00 p.m., while the respondent was climbing stairs to go to the roof of
the quarter for smoking and at that time lights went off and due to
darkness he slipped accidentally and fell down from the stairs and
sustained multiple injuries. The respondent was initially admitted to
Christian Hospital, Maqsuda where he was given first aid treatment for a
night and next day on 20.05.2005, he was transferred to Military Hospital,
Jalandhar for treatment of his multiple injuries. The respondent underwent
four operations, he was treated in military hospital for three to four
months. However, the respondent was placed in Low Medical Category A3 (T)
for 6/12 years. The respondent was sent for six weeks sick leave and he
reported back for review. The respondent was brought before the Release
Medical Board, wherein the RMB opined that respondent should be released
from military service in Permanent Low Medical Category A-3 for six
disabilities he sustained. The Release Board assessed the disabilities at
Military Hospital Faizabad and composite assessment was assessed at 60%.
After due procedure, the respondent was invalidated from service with
effect from 28.02.2006 after completion of seventeen years of service.
4. The respondent was paid monetary benefits due and payable to
him and also other pensionary benefits. The respondent’s claim for
disability pension was however rejected by the competent authority stating
that respondent’s disabilities are neither attributable to nor aggravated
due to military service. Aggrieved by the order, the respondent filed an
appeal dated 09.05.2007 before the appellate authority for grant of
disability pension. The respondent also sent two representations dated
01.10.2007 and December 2007. After due inquiry, appeal was rejected by the
Appellate Committee vide order dated 13.04.2007 holding that respondent was
not entitled to disability pension in terms of Rule 12 of Entitlement Rule
for Casualty Pensionary Award.
5. Aggrieved by the order, respondent filed O.A.No. 248 of 2011
before the tribunal. The tribunal vide impugned order dated 13.07.2011
allowed the application of the respondent holding that the respondent is
entitled to disability pension for 75% disability for life by giving the
benefit of rounding off from the date of invalidation. This appeal assails
the correctness of the impugned order.
6. Mr. P.S. Patwalia, learned Additional Solicitor General
appearing for the appellants contended that under Regulation 173 disability
pension is granted to an individual who is invalidated out of service on
account of disability which is either attributable to or aggravated by
military service. It was submitted that in the facts of the case, the act
of the respondent was not even remotely connected to his military duty and
while so, the tribunal erred in directing grant of disability pension to
the respondent.
7. Per contra, learned counsel for the respondent submitted that
the Medical Board opined that the disability of the respondent is
aggravated “due to stress and strain of military service” and once the
Medical Board gives its finding to the advantage of the disabled soldier,
it cannot be changed by any other authority and hence the respondent is
entitled for grant of disability pension and tribunal rightly directed
payment of disability pension to the respondent.
8. We have heard learned counsel for the parties and have gone
through the orders passed by the tribunal and the material placed on
record.
9. The primary conditions for grant of disability pension are
mentioned under Regulation 173 of the Pension Regulations for the Army
1961. Regulation 173 reads as under:-
“Unless otherwise specifically provided a disability pension consisting
of service element and disability element may be granted to an individual
who is invalidated out of service on account of disability which is
attributable to or aggravated by military service in non-battle casualty
or is assessed at 20% or over.”

10. In terms of Rule 12 of the Entitlement Rules for Casualty
Pensionary Awards 1982, a person subject to the disciplinary note of the
armed forces is treated on duty while performing anyone of the functions
mentioned in paragraphs (a), (b) and (c) of the Pension Regulations. Notes
(1) and (2) of the Entitlement Rules elaborate the scope and purport of the
term ‘duty’. Para (b) to Note (2) deals with accident which occurs when the
armed forces personnel is not strictly “on duty” as defined in Rule 12.
For such situations, the expression “on duty” is given an extended meaning
inasmuch as an accident which occurs when the person concerned is not
strictly “on duty” is also deemed to be on duty. We may usefully extract
Rule 12 of Entitlement Rules and para (a) to (f) of Notes (1) & (2) as
under:-
“Rule 12: Duty:- The Entitlement Rules 1982

A person subject to the disciplinary code of the Armed Forces is on duty:-

When performing an official task or a task, failure to do which would
constitute an offence triable under the disciplinary code applicable to
him;

When moving from one place of duty to another place of duty irrespective of
the mode of movement;

During the period of participation in recreation and other unit activities
organized or permitted by service authorities and during the period of
travelling in a body or singly by a prescribed or organized route.

Note 1: xx xx xx xx

xx xx xx xx

Note 2: (d) Personnel while travelling between place of duty to leave
station and vice versa to be treated on duty irrespective of whether they
are in physical possession of railway warrant/concession vouchers/cash TA
etc or not. An individual on authorized leave would be deemed to be
entitled to travel at public expense.

The time of occurrence of injury should fall within the time an individual
would normally take in reaching the leave station from duty station or vice
versa using the commonly authorized mode(s) of transport. However, injury
beyond this time period during the leave would not be covered.

An accident which occurs when a man is not strictly ‘on duty’ as defined
may also be attributable to service, provided that it involved risk which
was definitely enhanced in kind or degree by the nature, conditions,
obligations or incidents of his service and that the same was not a risk
common to human existence in modern conditions in India.”

11. This Court in Sukhwant Singh vs. Union of India through the
Secretary, Ministry of Defence And Ors., (2012) 12 SCC 228 after referring
to the judgment of the tribunal affirmed the legal position as summed up by
the tribunal and the same reads as under:-
“To sum up in our view the following principles should be the guiding
factors for deciding the question of attributability or aggravation, where
the disability or fatality occurs during the time the individual is on
authorized leave of any kind:
(a) The mere fact of a person being on ‘duty’ or otherwise, at the place of
posting or on leave, is not the sole criteria for deciding attributability
of disability/death. There has to be a relevant and reasonable causal
connection, howsoever remote, between the incident resulting in such
disability/death and military service for it to be attributable. This
conditionality applies even when a person is posted and present in his
unit. It should similarly apply when he is on leave; notwithstanding both
being considered as ‘duty’.
(b) If the injury suffered by the member of the armed force is the result
of an act alien to the sphere of military service or is in no way connected
to his being on duty as understood in the sense contemplated by Rule 12 of
the Entitlement Rules, 1982, it would neither be the legislative intention
nor to our mind would it be the permissible approach to generalise the
statement that every injury suffered during such period of leave would
necessarily be attributable.
(c) The act, omission or commission of which results in injury to the
member of the force and consequent disability or fatality must relate to
military service in some manner or the other, in other words, the act must
flow as a matter of necessity from military service.
(d) A person doing some act at home, which even remotely does not fall
within the scope of his duties and functions as a member of the force, nor
is remotely connected with the functions of military service, cannot be
termed as injury or disability attributable to military service. An
accident or injury suffered by a member of the armed force must have some
causal connection with military service and at least should arise from such
activity of the member of the force as he is expected to maintain or do in
his day-to-day life as a member of the force.
(e) The hazards of army service cannot be stretched to the extent of
unlawful and entirely unconnected acts or omissions on the part of the
member of the force even when he is on leave. A fine line of distinction
has to be drawn between the matters connected, aggravated or attributable
to military service, and the matter entirely alien to such service. What
falls ex facie in the domain of an entirely private act cannot be treated
as a legitimate basis for claiming the relief under these provisions. At
best, the member of the force can claim disability pension if he suffers
disability from an injury while on casual leave even if it arises from some
negligence or misconduct on the part of the member of the force, so far it
has some connection and nexus to the nature of the force. At least remote
attributability to service would be the condition precedent to claim under
Rule 173. The act of omission and commission on the part of the member of
the force must satisfy the test of prudence, reasonableness and expected
standards of behaviour.
(f) The disability should not be the result of an accident which could be
attributed to risk common to human existence in modern conditions in India,
unless such risk is enhanced in kind or degree by nature, conditions,
obligations or incidents of military service.”

The principles enunciated in the above judgment were referred to and
reiterated by this Court in Union of India And Anr. vs. Ex Naik Surendra
Pandey, 2015 (2) SCALE 361 to which both of us were parties.
12. Entitlement Rules for the Casualty Pensionary Awards 1982 are
beneficial in nature and ought to be liberally construed. In terms of Rule
12, the disability sustained during the course of an accident which occurs
when the personnel of the armed forces is not strictly on duty may also be
attributable to service on fulfilling of certain conditions enumerated
therein. But there has to be a reasonable causal connection between the
injuries resulting in disability and the military service.
13. Applying the ratio of various cases in Secretary, Ministry of
Defence & Ors. vs. Ajit Singh, (2009) 7 SCC 328 and relying upon the
principles laid down in Union of India & Ors. vs. Keshar Singh, (2007) 12
SCC 675 and Union of India & Ors. vs. Surinder Singh Rathore, (2008) 5 SCC
747, this Court rejected the claim of the respondent for disability pension
on account of electric shock sustained by him while he was on casual leave.
14. In Union of India And Ors. vs. Jujhar Singh (2011) 7 SCC 735,
this Court was dealing with the question whether the respondent who had met
with an accident in his native place and sustained grievous injury
resulting in permanent disability was entitled to disability pension. The
respondent in that case had upon recovery from injury continued in military
service and superannuated with normal service pension. In the said case,
this Court held that the member of armed forces who is claiming disability
pension must be able to show a reasonable nexus between the act, omission
or commission resulting in an injury to the person and the normal expected
standard of duties and a way of life expected from a member of armed
forces.
15. In yet another case, Union of India And Anr. vs. Talwinder
Singh, (2012) 5 SCC 480, the disability pension was claimed by the
individual enrolled in the army who was on annual leave for a period of
two months in his home town, got injured during the leave period by a small
wooden piece “Gulli” while playing with children which seriously damaged
his left eye. This Court in para (12) observed thus:-
“12. A person claiming disability pension must be able to show a reasonable
nexus between the act, omission or commission resulting in an injury to the
person and the normal expected standard of duties and way of life expected
from such person. As the military personnel sustained disability when he
was on an annual leave that too at his home town in a road accident, it
could not be held that the injuries could be attributable to or aggravated
by military service. Such a person would not be entitled to disability
pension. This view stands fully fortified by the earlier judgment of this
Court in Ministry of Defence v. Ajit Singh, (2009) 7 SCC 328.”

16. Applying these principles and Rule 12 and mandate of Regulation
173, admittedly in the instant case as mentioned in the proceedings before
the Board Officer that during the annual leave respondent went to Jalandhar
on 19.05.2005 from Himachal Pradesh to purchase ornaments and clothes for
his brother’s marriage. He was staying at his sister’s place and in the
night at about 8.00 p.m. while he was climbing the stairs to get to the
roof for smoking and at that time the lights went off and due to sudden
darkness he lost his balance and fell down and lost his senses. He was
admitted in civil hospital in Jalandhar and after first aid, he was
transferred to military hospital Jalandhar for multiple fracture injuries.
It is apparent that the injury sustained by Vijay Kumar was accidental in
nature and nobody can be blamed for the same. Respondent’s act of going
towards the roof for smoking at his sister’s house and falling down at no
stretch of imagination can be attributed to military service.
17. Learned counsel for the respondent heavily placed reliance upon
the judgment of this Court in Union of India & Anr. vs. Ex Naik Surendra
Pandey, (2015) 2 SCALE 361, in which the respondent went on annual leave
and was travelling from the place of his duty to the place where his family
was residing (Sewan). The respondent boarded the bus from Hajipur to reach
Patna to join his family and at that time, he met with an accident which
resulted in disability assessed at 20% by the Medical Board. In the said
case, it was the specific case of the respondent that although the
respondent’s hometown is Gopalganj, his family was residing at Patna and it
was for that reason he claimed to be travelling by train beyond Sewan upto
Hajipur by train to catch a bus to reach Patna to join his family.
Considering the facts and circumstances of the said case and that
respondent’s family was residing at Patna, this Court held that there was a
reasonable nexus and causal connection between the disability and the
military service of respondent at the relevant time. In para (12), it was
held that “…..The case may have been different if the respondent had
reached the destination engaged in some activity, unrelated to military
service and in the course of such activity met with an accident resulting
in a disability….”. Thus, Ex Naik Surendra Pandey case is clearly
distinguishable on facts.
18. Learned counsel for the respondent contended that the composite
assessment for the respondent’s disability was assessed at 60% by the
Medical Board and the same was found to be attributable and aggravated “due
to stress and strain of military service” and as per settled law once
medical board gives its finding to the advantage of the disabled soldier,
findings of the Medical Board cannot be changed. The above contention does
not merit acceptance. By perusal of record issued by Medical Board AFMSF-
16/17, it is seen that the assessment by the Board is recommendatory in
nature and is subject to acceptance by the Pension Sanctioning Authority.
It is also mentioned in the Medical Abstract Records as:-
“1. Though the disablement has been mentioned in percentage in para 6 of
Part V, this does not mean eligibility for disability pension since the
Invalidating Disabilities is/are neither attributable to nor aggravated by
service.”

When the opinion of the assessment by the Board is recommendatory in nature
and is subject to acceptance by the Pension Sanctioning Authority, the
opinion of the Medical Board by itself cannot confer right upon the
respondent to claim disability pension. Further, after accident the
respondent was treated in the military hospital for three to four months
and he was placed in low medical category. The respondent went for six
weeks sick leave and reported back for review and invalidated from service
with effect from 28.2.2006. After the accident when the respondent was not
actually performing military service, the opinion of the Medical Board
“aggravated due to stress and strain of military service” does not appear
to be in proper perspective. After the accident, when the respondent was
not actually performing his duties and therefore disability cannot be
attributed to military service nor can it be said to have been aggravated
due to stress and strain of military service.
19. In the light of the above discussion, it is clear that the
injury suffered by the respondent has no causal connection with the
military service. The tribunal failed to appreciate that the accident
resulting in injury to the respondent was not even remotely connected to
his military duty and it falls in the domain of an entirely private act and
therefore the impugned orders cannot be sustained.
20. In the result, the impugned order of the tribunal is set aside
and the appeal is allowed. In the facts and circumstances of the case, we
make no order as to costs.

….……………………J.
(T.S. THAKUR)

…..……………………J.
(R. BANUMATHI))

New Delhi;
August 26, 2015

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