inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint.= Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:- “17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of noncompliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” 5 (2006) 1 SCC 75 6 11. Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law. 12. Consequently, the orders passed by the High Court dated 20.08.2018 and by the trial court on 23.01.2018 are set-aside and the application filed by the Plaintiff to amend the plaint is allowed with no order as to costs.

Hon'ble Mr. Justice Hemant Gupta
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2431 OF 2019
 (Arising out of S.L.P (C) No. 2792 of 2019)
Varun Pahwa ........Appellant
 Versus
Mrs. Renu Chaudhary ........Respondent
J U D G M E N T
Hemant Gupta, J.
Leave granted.
2. The Order dated 20.08.2018 passed by the High Court of Delhi is
subject matter of challenge in the present appeal. By the aforesaid
order, a petition against an order passed by the learned trial court on
23.01.2018 seeking permission to amend the plaint was dismissed.
1
3. The appellant as Director of Siddharth Garments Pvt. Ltd. filed a
suit for recovery of Rs. 25,00,000/- along with pendente lite and future
interest on or about 28.05.2016. The Plaintiff has claimed the said
amount advanced as loan of Rs. 25,00,000/- remitted to the defendant
through RTGS on 16.06.2013 on HDFC Bank, Delhi. It is also averred that
Plaintiff has given Special Power of Attorney to Shri Navneet Gupta and
that a copy of the Power of Attorney is enclosed.
4. The defendant raised one of the preliminary objections in the
written statement that suit has not been filed by the Plaintiff and even
the alleged authorised representative has not filed any document
showing that he has been authorised by the above-named Plaintiff. The
Special Power of Attorney is neither valid nor admissible.
5. It was on 29.11.2016, Navneet Gupta appeared in Court as power
of attorney of the Plaintiff to examine himself as PW1. It was at that
stage; an order was passed by the learned trial court to furnish address
of the Plaintiff and why the Plaintiff should be examined through an
attorney when the Plaintiff is a resident of Delhi. It is thereafter, the
appellant filed an application for amendment of the plaint on the ground
that the counsel had inadvertently made the title of the suit wrongly as
the loan was advanced through the Company, therefore, the suit was to
be in the name of the Company. Therefore, the Plaintiff sought to
substitute para 1 and para 2 of the plaint with the following paras which
read as under:-
2
“1. That the Plaintiff is a Private Limited
Company having its registered office at: I-VA
(property bearing No. XII), Jawahar Nagar, Delhi
2. That the present plaint is filed through the
authorised representative of the Plaintiff namely
Sh. Navneet Gupta, R/o. 322, Kohat Enclave, Pitam
Pura, Delhi who has been authorised vide board
resolution dated 12.05.2016 to sign, verify and
execute all documents, papers, complaints,
applications, plaint, written statement, Counter
claim, affidavits, replies revisions, etc. and to
institute, pursue and depose in all legal
proceedings and court cases on behalf of Siddharth
Garments Pvt. Ltd against Mrs. Renu Chaudhary
who was given the loan of Rs. 25 Lakhs.”
6. The trial court declined the amendment on the ground that the
application is an attempt to convert the suit filed by a private individual
into a suit filed by a Private Limited Company which is not permissible
as it completely changes the nature of the suit. It is the said order
which was not interfered with by the High Court.
7. We have heard learned counsel for the appellant as none had
appeared on behalf of the respondent.
8. The plaint is not properly drafted in as much as in the memo of
parties, the Plaintiff is described as Varun Pahwa through Director of
Siddharth Garments Pvt. Ltd. though it should have been Siddharth
Garments Pvt. Ltd. through its Director Varun Pahwa. Thus, it is a case of
mistake of the counsel, may be on account of lack of understanding as
to how a Private Limited Company is to sue in a suit for recovery of the
amount advanced.
3
9. The memo of parties is thus clearly inadvertent mistake on the
part of the counsel who drafted the plaint. Such inadvertent mistake
cannot be refused to be corrected when the mistake is apparent from
the reading of the plaint. The Rules of Procedure are handmaid of justice
and cannot defeat the substantive rights of the parties. It is well settled
that amendment in the pleadings cannot be refused merely
because of some mistake, negligence, inadvertence or even
infraction of the Rules of Procedure. The Court always gives leave to
amend the pleadings even if a party is negligent or careless as the
power to grant amendment of the pleadings is intended to serve the
ends of justice and is not governed by any such narrow or technical
limitations. In State of Maharashtra vs. Hindustan Construction
Company Limited
1
, this Court held as under:-
“17. Insofar as the Code of Civil Procedure, 1908 (for
short “CPC”) is concerned, Order 6 Rule 17 provides
for amendment of pleadings. It says that the court may
at any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and on
such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of
determining the real questions in controversy between
the parties.
18. The matters relating to amendment of pleadings
have come up for consideration before the courts from
time to time. As far back as in 1884 in Clarapede &
Co. v. Commercial Union Assn.
2
- an appeal that came
up before the Court of Appeal, Brett M.R. stated:
“... The rule of conduct of the court in such
a case is that, however negligent or
careless may have been the first
omission, and, however late the
proposed amendment, the amendment
1 (2010) 4 SCC 518
2 (1883) 32 WR 262 (CA)
4
should be allowed if it can be made
without injustice to the other side. There is
no injustice if the other side can be
compensated by costs; but, if
the amendment will put them into such a
position that they must be injured, it ought
not to be made….”
19. In Charan Das v. Amir Khan
3
 the Privy Council
exposited the legal position that although power of a
Court to amend the plaint in a suit should not as a rule
be exercised where the effect is to take away from the
defendant a legal right which has accrued to him by
lapse of time, yet there are cases in which that
consideration is outweighed by the special
circumstances of the case.
*** *** ***
22. In Jai Jai Ram Manohar Lal
4
 this Court was
concerned with a matter wherein amendment in the
plaint was refused on the ground that the amendment
could not take effect retrospectively and on the date of
the amendment the action was barred by the law of
limitation. It was held: (SCC p.871, para 5)
“5. …. Rules of procedure are intended to
be a handmaid to the administration of
justice. A party cannot be refused just
relief merely because of some mistake,
negligence, inadvertence or even
infraction of the Rules of procedure. The
court always gives leave to amend
the pleading of a party, unless it is
satisfied that the party applying was acting
mala fide, or that by his blunder, he had
caused injury to his opponent which may
not be compensated for by an order of
costs. However negligent or careless may
have been the first omission, and, however
late the proposed amendment,
the amendment may be allowed if it can be
made without injustice to the other side.”
This Court further stated (Jai Jai Ram Manohar Lal case,
SCC p.873, para 7):
3 (1919-20) 47 IA 255
4 (1969) 1 SCC 869
5
“7. ...The power to grant amendment of
the pleadings is intended to serve the
ends of justice and is not governed by any
such narrow or technical limitations.”
10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and
Another
5
, this Court held that procedural defects and irregularities
which are curable should not be allowed to defeat substantive rights or
to cause injustice. Procedure should never be made a tool to deny
justice or perpetuate injustice by any oppressive or punitive use. The
Court held as under:-
“17. Non-compliance with any procedural requirement
relating to a pleading, memorandum of appeal or
application or petition for relief should not entail
automatic dismissal or rejection, unless the relevant
statute or rule so mandates. Procedural defects and
irregularities which are curable should not be allowed to
defeat substantive rights or to cause injustice.
Procedure, a handmaiden to justice, should never be
made a tool to deny justice or perpetuate injustice, by
any oppressive or punitive use. The well-recognised
exceptions to this principle are:
(i) where the statute prescribing the procedure, also
prescribes specifically the consequence of noncompliance;
(ii) where the procedural defect is not rectified, even
after it is pointed out and due opportunity is given for
rectifying it;
(iii) where the non-compliance or violation is proved to
be deliberate or mischievous;
(iv) where the rectification of defect would affect the
case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete
absence of authority and the appeal is presented
without the knowledge, consent and authority of the
appellant.”
5 (2006) 1 SCC 75
6
11. Thus, we find that it was an inadvertent mistake in the plaint
which trial court should have allowed to be corrected so as to permit the
Private Limited Company to sue as Plaintiff as the original Plaintiff has
filed suit as Director of the said Private Limited Company. Therefore, the
order declining to correct the memo of parties cannot be said to be
justified in law.
12. Consequently, the orders passed by the High Court dated
20.08.2018 and by the trial court on 23.01.2018 are set-aside and the
application filed by the Plaintiff to amend the plaint is allowed with no
order as to costs.
The appeal is allowed.
 ……………………………………
………J.
 (Dr. D. Y. Chandrachud)
 ………………………………………
…….J.
 (Hemant Gupta)
New Delhi,
March 1, 2019
7

nomination of a Director = the appellants also sought a declaration that clause 3 (2) (iii) of the Scheme, 1970 be struck down as being ultra vires the Constitution. = Learned counsel for the appellants then submitted that once the employee is nominated to the Board of Directors­may be from different categories specified under Section 9, then no distinction should be made between them while prescribing the qualification and disqualification. 14 31) This submission has also no merit. A mere reading of Section 9(3) clause (a) to (i) would go to show that the Board of Directors consists of persons coming from different fields. There cannot, therefore, be a uniform qualification or/and disqualification for such persons. Indeed, the qualifications and disqualifications are bound to vary from category to category and would depend on the post, experience and the stream from where a person is being nominated as a Director. Moreover, the qualification and disqualification has to be seen prior to his/her becoming a Director and not after his/her appointment as a Director. In view of the foregoing discussion, we find no good ground to interfere with the reasoning and the conclusion arrived at by the High Court, which rightly dismissed the appellants’ writ petition, and upheld Clause 3(2)(iii) of the Scheme as being legal.

   
Hon'ble Mr. Justice Abhay Manohar Sapre

       REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5570 OF 2014
Fed. of Bank of India Staff Unions
& Anr.              ….Appellant(s)
VERSUS
Union of India & Anr.            …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This   appeal   is   directed   against   the   final
judgment and order dated 08.04.2011 passed by
the High Court of Bombay  at Goa in  Writ Petition
(c)   No.618   of   2010   whereby   the   High   Court
dismissed the writ petition filed by the appellants
herein.
2) The appeal involves a short point as would be
clear from the facts stated infra.
1
3) The appellants herein are the writ petitioners
and the respondents herein are the respondents in
the writ petition filed in the High Court of Bombay
at Goa, out of which this appeal arises.
4) Appellant   No.1   is   an   Association   of   various
Staff Unions of the employees working in the Bank
of India ­ respondent No.2 herein. Appellant No.1 is
a   registered   Association   under   the   Trade   Unions
Act,   1926.     Appellant   No.2   is   an   employee   of
Respondent No.2 ­ Bank and at the relevant time
was   working   as   Deputy   General   Secretary   of
appellant No.1­ Association.
5) The   Banking   Companies   (Acquisition   and
Transfer   of   Undertakings)   Act,   1970/1980
(hereinafter   referred   to   as   “the   Act”)   deals   with
Banking   Companies   and   their   internal   affairs.
Section   9   of   the   Act   empowers   the   Central
Government to make scheme after consultation with
2
the   Reserve   Bank   of   India   for   carrying   out   the
provisions of the Act.
6) Section   9   (3)   of   the   Act   provides   for
composition of Board of Directors and also provides
as to who can be nominated as Directors in the
Board of Directors. Clauses (a) to (i) of sub­section
(3) of Section 9 of the Act sets out various categories
from   which   one   Director   from   each   of   such
categories is nominated in the Board of Directors.
Clause(e)   deals   with   a   category   of
workman/employee Director whereas clause(f) deals
with a category of officer/employee Director for their
nomination in the Board of Directors. 
7) In exercise of powers conferred under Section
9(1) of the Act, the Central Government has framed
a   Scheme   called­The   Nationalized   Banks
(Management   and   Miscellaneous   provisions)
Scheme, 1970.
8) Chapter II of the Scheme deals with Board of
Directors.   Clause 3 of the Scheme deals with the
3
constitution of the Board whereas Clause 3(2)(iii)
deals with disqualification of a workman/employee
for being nominated as a Director.
9) So   far   as   the   procedure   relating   to   the
nomination of a Director out of the officer/employee
category falling in clause(f) of Section 9(3) of the Act
is concerned, it is provided in the third schedule to
the Scheme.
10) So far as the case at hand is concerned, it
relates  to  the  nomination  of  a  Director  from  the
workman/employee category falling in clause (e) of
Section   9(3)   of   the   Act   and   also   relates   to   his
disqualification for being nominated as a Director in
that category.
11) On 28.05.2009, the Management of the Bank
(respondent   No.2)   called   upon   the   appellants   to
furnish   a   panel   of   three   workers/employees   for
being nominated as a Director in order of preference
in the category of “Workman Director” in the Board
of Directors.
4
12) The appellants, in compliance with the request
made by  respondent  No.2, sent  a panel  of three
names   of   the   workers/employees   in   order   of
preference to the Central Government by their letter
dated 08.06.2009.  These names were ­ Mr. Dinesh
Jha   “Lallan”,   Mr.   Ram   Gopal   Sharma   and   Mr.
Pranab Kumar Roy Chowdhary.
13) The Secretary, Government of India, by letter
dated 10.10.2009, however, informed the appellants
that since all the three workers/employees, whose
names   were   sent,   have   less   than   three   years   of
residual   service   before   their   superannuation,
therefore it is not possible to nominate any of the
workers/employees   as   Director   in   the   Board   of
Directors.   The   appellants   were   accordingly
requested to send a fresh panel of names to enable
the Central Government to nominate one, out of the
three   new   names,   as   Director   in   the   Board   of
Directors.
5
14) The   appellants   instead   of   sending   the   fresh
three   names   submitted   their   representation   on
21.10.2009 and requested the Central Government
to re­consider the matter afresh and nominate any
one out of the three names already sent by them
vide their letter dated 08.06.2009.  The parties then
went on exchanging the letters on this subject, but
the   Central   Government   did   not   accede   to   the
request   made   by   the   appellants   and   insisted   on
them   to   send   fresh   names   of   the
workers/employees.
15) It   is   with   these   background   facts,   the
appellants felt aggrieved and filed a writ petition in
the   High   Court   of   Bombay   at   Goa.   In   that   writ
petition,   the   appellants   (writ   petitioners)   sought
quashing of the communication of respondent No.1
dated 10.10.2009 by which respondent No.1 had
rejected the panel of three names sent by them vide
their letter dated 08.06.2009.  A writ of mandamus
was also prayed commending the respondents to
6
consider   the   nomination   penal   sent   by   the
appellants vide their letter dated 08.06.2009 and
nominate one worker/employee as Director out of
the   three   names   sent   by   them   in   the   Board   of
Directors.
16) In the alternative, the appellants  also sought a
declaration   that   clause   3   (2)   (iii)   of   the   Scheme,
1970   be   struck   down   as   being  ultra   vires  the
Constitution.
17) The respondents opposed the writ petition by
filing   their   counter   affidavit.     The   respondents
placed reliance on the provisions of the Act and the
Scheme framed thereunder and contended inter alia
that the challenge made in the writ petition has no
factual or/and legal basis.
18) By   the   impugned   order,   the   High   Court
dismissed the writ petition finding no merit therein,
which has given rise to filing of this appeal by way
of special leave by the unsuccessful writ petitioners
­ Union of workers/employees in this Court.
7
19) Heard Mr. Sidharth Bhatnagar, leaned counsel
for the appellants and Mr.Pranab Kumar Mullick &
Ms.   Bhakti   Pasrija,   learned   counsel   for   the
respondents.
20) Having   heard   the   learned   counsel   for   the
parties at length and on perusal of the record of the
case, we find no merit in this appeal.
21) At   the   outset,   we   find   that   so   far   as   the
challenge   to   the   impugned   communication   dated
10.10.2009   and   enforcement   of   the   appellants’
letter dated 08.06.2009, i.e. (Relief Nos.(a) and (b) in
the writ petition) is concerned, both the reliefs have
been rendered infructuous.
22) It is for the reason that the employees/workers
whose names were recommended by appellant No.1
in their letter dated 08.06.2009 have retired long
back. Not only that, on their retirement, many other
persons   were   nominated   as   Director   out   of   the
category   of   worker/employee   in   the   Board   of
8
Directors  of  the  Bank.     This  relief,  therefore,  no
longer survives for consideration.
23) Now   the   only   question,   which   survives   for
consideration in this appeal, is regarding the legality
of Clause 3(2)(iii) of the Scheme, 1970 ­ whether
Clause 3(2)(iii) of the Scheme is legal or ultra vires
the Constitution. The High Court, in the impugned
order,   has   held   that   the   Clause   3(2)(iii)   of   the
Scheme is legal and valid. 
24) The   challenge   to   the   Clause   3(2)(iii)   of   the
Scheme   is   essentially   based   on   one   argument.
According to the appellants, there does not appear
to be any rational or basis in providing two different
types   of   disqualifications­one   for
workers/employees   and   the   other   for   the
officers/employees while considering their cases for
nomination   as   Director   from   their   respective
categories.
25) In   other   words,   the   submission   is   that   the
disqualification provided in Clause 3(2)(iii)(b) of the
9
Scheme for the worker/employee category is only
confined   to   their   category.   No   such   similar
disqualification   is   made   applicable   to   the
officer/employee category.
26) This, according to the appellants, has created
discrimination   between   the   two   categories   of   the
Directors   without   any   reasonable   basis   and,
therefore,     Clause   3(2)(iii)   of   the   Scheme   and
especially clause (b) thereof violates the principle
underlined in Article 14 of the Constitution of India.
27) We find no merit in this submission for more
than one reason.
28) Section 9(3)(e) and (f) of the Act and Clauses
3(2)(i),(ii) and (iii) of the Scheme are relevant for the
disposal of this appeal which read as under:
“Section 9(3)(e) and (f) of the Act
9.  Power   of   Central   Government   to   make
scheme­(1)   The   Central   Government   may,
after   consultation   with   the   Reserve   Bank,
make   a   scheme   for   carrying   out   the
provisions of this Act.
(2) ……….
10
(3) Every   Board   of   Directors   of   a
corresponding   new   bank,   constituted   under
any scheme made under sub­section (1), shall
include­
(a)  ………
(b)  ………
(c)  ……….
(e)  one  director,   from   among   such   of   the
employees   of   the   corresponding   new
bank who are workmen under clause (s)
of  section  2  of  the  Industrial  Disputes
Act, 1947 (14 of 1947), to be nominated
by   the   Central   Government   in   such
manner   as   may   be   specified   in   a
scheme made under this section;
(f)  one   director,   from   among   the
employees   of   the   corresponding   new
bank   who   are   not   workmen   under
clause (s) of section 2 of the Industrial
Disputes  Act, 1947   (14  of  1947), to  be
nominated  by  the  Central  Government
after   consultation   with   the   Reserve
Bank;
Clause 3(2)(i),(ii) and (iii) of the Scheme
3. Constitution   of   the   Board­(1)   The
Central  Government   shall  by  notification   in
the Official Gazette, constitute the Board of a
Nationalised Bank.
(2) (i) The director referred to in clause (e)
of   sub­section   (3)   of   section   9   of   the   Act,
shall   be   nominated   by   the   Central
Government from out of a panel of three such
employees   furnished   to   it   by   the
representative   union,   within   a   date   to   be
specified  by  the  Central  Government,  which
date  shall  not  be  more  than  six  weeks   from
the   date   of   communication   made   by   the
Central   Government,   requiring   the
11
representative  union  to  furnish  the  panel  of
names:
Provided   that   where   the   Central
Government   is  of  the  opinion  that  owing  to
the   delay   which   is   likely   to   occur   in   the
verification and certification of any union or
federation   as   a   representative   union   it   is
necessary in the interest of the Nationalised
Bank so to do, it may nominate any employee
of the Nationalised Bannk, who is a workman,
to be a director of that Bank.
(ii) (a)Where   there   is   no   representative
union,   to   represent   the  workman   of   a
Nationalised Bank, or
(b) where such representative union being
in   existence   omits   or   fails   to   furnish
any panel of names within the specified
date, or
(c)  where  all  the  persons  specified   in  the
panel   furnished   by   the   representative
union   are   disqualified   whether   under
item   (iii)   of   this   sub­clause   or   under
clause   10,   the   Central   Government
may,   at   its   discretion   appoint   such
workman of the Nationalised Bank, as it
may think fit, to be  a director of  such
bank.
(iii)  A  workman  of  a  Nationalised  Bank  shall
be   disqualified   for   being   nominated   as   a
director unless­
(a) he   is   and   has   been,   serving   for   a
continuous   period   of   not   less   than
five   years   in   the   Nationalised   Bank,
and
(b) he   is   of   such   age   that   there   is   no
likelihood of  his attaining  the  age  of
superannuation   during   his   terms   of
office as director.”
12
29) It would be clear from a perusal of clauses (e)
and   (f)   of   Section   9(3)   of   the   Act   that   both   the
categories   of   employees   are   different   ­   one   is
worker/employee category as defined under Section
9(3)(e) and the other is officer/employee category as
defined under Section 9(3)(f) of the Act. Second, it is
for the legislature to decide as to what qualifications
and   disqualifications   should   be   prescribed   for
various   categories   of   the   employees   for   their
nomination on the post of Director.  Third, there lies
a distinction between the worker and the officer.
The former, i.e., worker is defined under Section 2(s)
of the Industrial Disputes Act, 1947 and is governed
by that Act whereas the latter, i.e., officer is not
governed   by   the   Industrial   Disputes   Act   but   is
governed   by   separate   service   rules.     Both   these
categories   of   employees,   therefore,   cannot   be
equated with each other and nor can be placed at
par   for   providing   equal   qualification   or/and
disqualification for their nomination as a Director in
13
the Board of Directors. Fourth, Article 14 of the
Constitution   applies  inter   se  two   equals   and   not
inter se unequals. The case at hand falls under the
latter category and, therefore, reliance placed on the
principle   enshrined   under   Article   14   of   the
Constitution by the appellants is wholly misplaced.
Fifth,   the   nominee   worker/employee   has   only   a
right under the Act to be appointed as Director from
the category of worker/employee in terms of Section
9 (3)(e) of the Act provided the concerned nominee
whose name is recommended by the Union fulfills
the qualifications laid down in Clause 3(2)(iii) of the
Scheme but not beyond it.
30) Learned   counsel   for   the   appellants   then
submitted that once the employee is nominated to
the   Board   of   Directors­may   be   from   different
categories   specified   under   Section   9,   then   no
distinction   should   be   made   between   them   while
prescribing the qualification and disqualification.
14
31) This submission has also no merit.   A mere
reading of Section 9(3) clause (a) to (i) would go to
show that the Board of Directors consists of persons
coming   from   different   fields.   There   cannot,
therefore,   be   a   uniform   qualification   or/and
disqualification   for   such   persons.     Indeed,   the
qualifications   and   disqualifications   are   bound   to
vary from category to category and would depend on
the post, experience and the stream from where a
person is being nominated as a Director.  Moreover,
the qualification and disqualification has to be seen
prior to his/her becoming a Director and not after
his/her appointment as a Director.
32) In view of the foregoing discussion, we find no
good ground to interfere with the reasoning and the
conclusion   arrived   at   by   the   High   Court,   which
rightly dismissed the appellants’ writ petition, and
upheld Clause 3(2)(iii) of the Scheme as being legal.
15
33) The appeal is thus found to be devoid of any
merit.  It fails and is accordingly dismissed.
   
               
    ………...................................J.
     [ABHAY MANOHAR SAPRE]
                                 
   …...……..................................J.
             [INDU MALHOTRA]
New Delhi;
March 01, 2019
16

application for enrolment as an advocate = suppression that was alleged against the Appellant at the time of seeking enrolment in the Bar Council of Himachal Pradesh pertains to his being in Government service in the State of Himachal Pradesh and his involvement in a criminal case. Subsequent acquittal cannot come to the rescue of the Appellant. Section 26 of the Advocates Act, 1961 confers power on the Bar Council of India to remove the name of a person who entered on the Roll of Advocates by misrepresentation. It is in exercise of this power that the enrollment of the Appellant was cancelled. The first order that was passed by the Bar Council cancelling his enrolment as an advocate was confirmed by this Court. The repeated attempts made by the Appellant later amount to an abuse of process. The Appellant would be better advised not to indulge in pursuing the matter pertaining to 5 his enrollment as Advocate

 

Hon'ble Mr. Justice L. Nageswara Rao 

Non -Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL No .294 of2007
ANAND KUMAR SHARMA .... Appellant

Versus
BAR COUNCIL OF INDIA
THROUGH SECRETARY & ANOTHER ….Respondents
W I T H
CIVIL APPEAL No._2426-2427 of 2019
[ Arising out of S.L.P. (Civil)…6383-6384/2019
CC Nos. 10531 - 10532 of 2013]
ANAND KUMAR SHARMA .... Appellant

Versus
BAR COUNCIL OF RAJASTHAN ETC. ….Respondents
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted in S.L.P. (C)..CC Nos. 10531 - 10532 of
2013.
1. The Appellant was enrolled as an advocate in the Bar
Council of Himachal Pradesh in July, 1988. He applied for
transfer of his enrolment to the State of Rajasthan which
1
was permitted by the Bar Council of India on 27th May, 1989.
The Bar Council of Rajasthan received a complaint
that the Appellant’s enrolment in the State of Himachal
Pradesh was obtained by suppression of facts and relevant
material. The enrolment of the Appellant was cancelled on
6
th November, 1995 by the Bar Council of India. The
said order was affirmed by this Court as the Special Leave
Petition filed by the Appellant was dismissed on 5th August,
1996.
2. Thereafter, the Appellant applied for enrolment as an
advocate seeking exemption from training of one year in
view of his experience as an advocate earlier. He
approached the High Court of Rajasthan seeking a direction
to the Bar Council of Rajasthan to decide his application for
exemption from training. The said Writ Petition was
dismissed by a learned Single Judge by holding that the
Appellant was not entitled for enrolment. In the Appeal filed
against the said judgment of the learned Single Judge, a
Division Bench directed the Bar Council of Rajasthan to
consider the application filed by the Appellant without being
influenced by the observations made by the learned Single
Judge.
2
3. The Bar Council of Rajasthan dismissed the application
of the Appellant for enrolment on 16th January, 2000 and
referred the matter for confirmation of the Bar Council of
India. The Bar Council of India confirmed the
order passed by the Bar Council of Rajasthan on 16th
January, 2000.
4. The Appellant filed yet another application for
enrolment as an advocate before the Bar Council of
Rajasthan which was rejected on 29th June, 2003. The Bar
Council of India confirmed the order of 29th June, 2003 by its
resolution dated 3rd January, 2004.
5. The Appellant made another attempt for enrolment by
filing an application before the Bar Council of Rajasthan.
Initially, the said application was rejected on the ground that
the Appellant cannot be admitted as an advocate since he
has crossed the age of 45 years in view of Rule 1-A of the
Enrollment Rules, Bar Council of Rajasthan framed under
Section 28 (1) (d) read with Section 24 (1) (e) of the
Advocates Act, 1961. The said Rule was struck down by the
High Court of Rajasthan by judgment dated 19th August,
2008. Taking into account the earlier order dated 16th
January, 2000 by which the application for enrolment filed
3
by Appellant was rejected, the Bar Council of Rajasthan
refused to enroll the Appellant as an advocate by the order
dated 14th July, 2012. The order dated 14th July,
2012 of the Bar Council of Rajasthan was affirmed by the
Bar Council of India on 15th September, 2012.
6. C.A. 294 of 2007 is filed by the Appellant challenging
the order dated 29.06.2003 of the Bar Council of Rajasthan
and the consequential orders dated 02.01.2004 of the Bar
Council of India and the order dated 18.03.2004 of the Bar
Council of Rajasthan. The legality of the orders dated 14th
July, 2012 of the Bar Council of Rajasthan affirmed by the
Bar Council of India on 15th September,
2012 is subject matter of Special Leave Petitions (Civil)… CC
Nos. 10531-10532 of 2013.
7. The Appellant is a qualified medical doctor who was
appointed as a Medical Officer on contract basis by the
Government of Himachal Pradesh. In the affidavit filed in
Special Leave Petitions (Civil)..CC Nos. 10531-10532 of
2013, the Appellant stated that a FIR
registered against him at Police Station Dhambola on 15th
April, 1988. He was arrested and sent to judicial custody.
He further stated that he was absent from service without
obtaining leave for which reason his services were
4
terminated by the Director. The Appellant has also referred
to his conviction under Section 419 of the Indian Penal
Code, 1860 by the Judicial Magistrate on 7th January, 1988.
He has also filed the judgment of the Sessions Judge,
Dungarpur, Rajasthan by which his appeal against the
conviction under Section 419 IPC was allowed. The
suppression that was alleged against the Appellant at the
time of seeking enrolment in the Bar Council of Himachal
Pradesh pertains to his being in Government service in the
State of Himachal Pradesh and his involvement in a criminal
case. Subsequent acquittal cannot come to the rescue of
the Appellant. Section 26 of the Advocates Act, 1961
confers power on the Bar Council of India to remove the
name of a person who entered on the Roll of Advocates by
misrepresentation. It is in exercise of this power that the
enrollment of the Appellant was cancelled. The first
order that was passed by the Bar Council cancelling his
enrolment as an advocate was confirmed by this Court.
The repeated attempts made by the Appellant later amount
to an abuse of process. The Appellant would be better
advised not to indulge in pursuing the matter pertaining to
5
his enrollment as Advocate. The orders impugned in the
Appeals do not suffer from any infirmity and are upheld.
8. The Appeals are dismissed accordingly.
 ..................................J.
 [ L. NAGESWARA RAO ]
 ..................................J.
 [ M.R. SHAH]
New Delhi,
March 01, 2019.
6

Section 58 and 59 provides for two different mechanisms for adoption. As per Section 59(1), if an orphan or abandoned or surrendered child could not be placed with an Indian or non-resident Indian prospective adoptive parents despite the joint effort of the Specialised Adoption Agency and State Agency within sixty days from the date the child has been declared legally free for adoption, such child shall be free for inter-country adoption. Thus, sixty days period has to be elapsed from the date when the child has been declared legally free for adoption. In the present case, child was declared free for adoption on 14.12.2017 by Child Welfare Committee, Patna, Bihar. Before expiry of sixty days, child could not have been offered for adoption to parents, who are 22 eligible for adoption under Section 59. We are, however, not oblivious to the fact that respondent Nos.1 and 2 had been bonafide pursuing their applications for adoption, initially as resident Indians and thereafter even as overseas citizens of India. As per Section 57, both the respondent Nos.1 and 2 are fully eligible and competent to adopt the child. It was under the circumstances as noticed above that the child Shomya was offered to respondent Nos.1 and 2, who rightly communicated their acceptance and communicated with the child and are willing to take child in adoption and to take all care and provide good education to her. We have no doubt in the bonafide or the competence of respondent Nos.1 and 2 in their effort to take the child in adoption, but the statutory procedure and the statutory regime, which is prevalent as on date and is equally applicable to all aspirants, i.e., Indian prospective adoptive parents and prospective adoptive parents for inter-country adoption, cannot be lost sight. However, by virtue of Section 59(2), the respondent Nos.1 and 2 can at best may be given priority in inter-country adoption, they being 23 eligible overseas citizens of India and further due to consequences of events and facts as noticed above.

Hon'ble Mr. Justice Ashok Bhushan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2017-2020 OF 2019
(arising out of S.L.P.(C) Nos.1476-1479 of 2019)
UNION OF INDIA & ANR. ETC. ...APPELLANTS
Vs.
ANKUR GUPTA & ORS. ...RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. The contesting respondent Nos. 1 and 2 having
appeared through caveat, we have heard counsel for
the parties and proceed to decide the matter finally.
3. Union of India and Central Adoption and Resources
Agency, Ministry of Women & Child Development is in
appeal questioning the Division Bench judgment dated
04.09.2018 in Writ Appeal No. 2259 of 2018 and Writ
Appeal No.2675 of 2018. Two other appeals have been
filed by two other appellants questioning a common
1
order dated 04.09.2018 passed by the High Court in
C.C.C. No. 1690 of 2018 and C.C.C. No. 1691 of 2018.
4. We first take the Civil Appeal filed against the
Division Bench judgment in Writ Appeal No.2259 of
2018 and Writ Appeal No.2675 of 2018. The brief
facts giving rise to the appeal as has been noted by
the Division Bench of the High Court are to the
following effect:-
4.1 That after completing his studies from the
Indian Institute of Technology and India
Institute of Management, Ahmedabad, in the
year 2000, Mr. Ankur Gupta, the respondent
No.1 migrated to United State of America (USA
for short). In 2004, Ms. Geetika Agarwal, the
respondent No.2 went to USA for her Ph.D.
During their stay in USA in June, 2006, the
respondent Nos. 1 and 2 got married. They
stayed in USA for a decade. They returned to
India in 2016. While staying in USA, the
respondent No.2 became an American Citizen;
the respondent No.1 applied for American
citizenship. However, till 2016, when the
2
couple returned to India, the respondent No.1
was not given the American Citizenship.
Moreover, even after ten years of marriage,
the couple was not blessed with any children.
Therefore, upon their return to India, they
eventually planned to adopt an Indian child.
4.2 The respondent Nos.1 and 2 submitted an
Application on 19.07.2016 through Central
Adoption Resource Information and Guidance
System (CARINGS) to adopt a child as Indian
Prospective Adoptive Parents. Just before
submitting the application for adoption
respondent No.2 had acquired the citizenship
of USA on 19.05.2016 which had been declared
as such in application submitted on
19.07.2016.
4.3 According to the Guideline, 2015, a Home
Study Report has to be prepared by a
Specialized Adoption Agency in order to
coordinate the efforts of a ‘Prospective
adoptive parents’ to adopt a child. On
01.08.2016, Shishu Mandir Agency, a
3
registered Specialized Adoption Agency, filed
its Home Study Report. Thereafter, the
respondents were in queue awaiting referral
of a child for adoption. On 05.12.2016,
during the time they were waiting for
referral of a child for adoption, the
respondent No.1 was granted the U.S.
Citizenship on 05.12.2016.
4.4 According to the respondents, on the basis of
the advice received by them, they informed
CARA, the appellant No.2 about the change in
citizenship status of respondent No.1.
Moreover, on 05.11.2017, the couple
registered themselves as Overseas Citizens of
India (OCI) residing in India. The said
registration was made under the Adoption
Regulations, 2017 (Regulations, 2017, for
short), which was notified on 4th January 2017
in supersession of the Guidelines Governing
Adoption of Children, 2015.
4
4.5 Since the respondents had informed the
Specialised Adoption Agency about the change
in their citizenship status, the Specialized
Agency informed the appellant No.2, through
e-mail dated 05.12.2017, about the change of
citizenship status of the respondents. The
Specialised Adoption Agency referred to the
respondents’ second registration, namely,
CUSA201771205. On behalf of the respondents,
the Specialised Adoption Agency requested the
appellants that the respondent’s seniority
for adoption of a child should be continued
on the basis of the first registration.
4.6 By e-mail dated 06.12.2017, the appellant
No.2 informed the Specialised Adoption Agency
that the request for continuing the seniority
of the couple would be considered with the
approval of the competent authority. However,
the eligibility of the couple for adoption
would be in the category of “OCI living in
India”.
5
4.7 On 01.01.2018, Baby Shomya (born on
30.09.2017) was referred by the respondent
No.3 for adoption by the respondent Nos. 1 &
2. The respondent Nos. 1 & 2 accepted the
referral on 02.01.2018. The respondent Nos. 1
& 2 visited Baby Shomya, who was with the
respondent No.3 at Patna. Therefore, on
04.01.2018, the respondent Nos.1 & 2 wrote to
the CEO of the appellant No.2 requesting for
continual of the reference of Baby Shomya for
adoption. The respondent Nos.1 & 2, who
apprehended that the referral of Baby Shomya
for adoption would expire on 18.01.2018,
repeatedly corresponded with the appellants
as a follow-up for completing the adoption of
Baby Shomya. Again, in the month of March
2018, the respondent nos. 1 & 2 visited Baby
Shomya. During this visit, they were informed
that in a High-Level Committee Meeting on
27.02.2018, their request for permission to
continue the first application dated
19.07.2016, as Indians living in India
Prospective Adoptive Parents, was declared as
6
invalid, because the respondent No.1 had also
been given US citizenship. They were further
informed that they will, instead, have to
wait for a referral of another child as
‘Overseas Citizen of India’.
4.8 Therefore, the respondent Nos. 1 and 2 filed
writ petition, namely, W.P. Nos. 12427-428 of
2018, impugning the aforesaid decision, which
was communicated to them over an e-mail dated
15.03.2018. The Writ Court allowed the writ
petitions by order dated 19.06.2018. The writ
Court quashed the aforesaid decision
communicated vide the e-mail dated
15.03.2018. Further, the High Court directed
the appellants to consider and examine the
request of the respondent Nos.1 & 2 on the
basis of their first application dated
19.07.2016 expeditiously, but within 15 days
from the date of receipt of this order.
4.9 The learned Single Judge vide its judgment
and order dated 19.06.2018 allowed the writ
petitions by passing following order:-
7
 “ORDER
(1) Writ petitions are hereby
allowed.
(2) Communication dated 15.03.2018-
Annexure-Z is hereby quashed.
(3) Writ of mandamus is issued to
respondents to consider and
examine the application submitted
by petitioners on the strength
and basis of the application
dated 19.07.2016 – AnnexureA/Annexure-R-2 expeditiously, at
any rate, within 15 days from the
date of receipt of this order, by
keeping in mind the observations
made herein above. “
4.10 Union of India and Central Adoption Resources
Agency, Ministry of Women & Child Development
filed Writ Appeal No. 2259 of 2018 and Writ
Appeal No. 2675 of 2018 against the judgment.
Two Contempt Applications being C.C.C. Nos.
1690-1691 of 2018 were also filed by
respondent Nos. 1 and 2, which were also
considered and decided by Division Bench of
High Court vide its judgment dated
04.09.2018. The Division Bench of the High
Court vide its judgment dated 04.09.2018
dismissed the writ appeals. The Division
Bench affirmed the order of the learned
8
Single Judge. While dismissing the writ
appeals, the contempt petitions were also
closed. It is useful to extract paragraph
Nos. 30 and 31 of the judgment, which is
relevant for the present case:-
“30. For the aforesaid reasons,
this Court is of the considered
opinion that the Writ Court has
rightly concluded that the
appellants were not justified in
denying the benefit of referral of
the child, Baby Shomya, for
adoption by the respondent Nos.1
and 2, and that no grounds are made
out for interference with the
exercise of extraordinary
jurisdiction by the Writ Court
under Article 226 of the
Constitution of India in the
peculiar facts and circumstances
that congeal into exceptional
circumstances. Therefore, the Writ
appeal is rejected and
consequentially, the pending
applications are also disposed of.
The appellants are directed to
implement the directions of the
Writ Court within a period of four
weeks from the date of receipt of
the certified copy of this order.
31. In view of the dismissal of
the writ appeal, and the further
direction to the appellants to
implement the directions of the
Writ Court within the further
period as stated above, the
contempt proceeding is closed.”
9
4.11 The appellants aggrieved by the said judgment
have filed these appeals.
5. Shri Aman Lekhi, learned ASG appearing for the
appellants submits that High Court, both learned
Single Judge and Division Bench erred in not
correctly construing the provisions of Sections 57,
58 and 59 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 as well as the
Adoption Regulations, 2017. It is submitted that the
respondent No.1 after submitting first application on
19.07.2016 for in country adoption having acquired US
citizenship on 06.12.2016 went outside the zone of in
country adoption. It is submitted that the second
application was submitted by the respondents on
05.11.2017 for inter country adoption but in that
second application, the respondents have given their
different identity and mobile numbers. It is
submitted that the respondent having gone out of zone
of consideration for in country adoption, their
application cannot be directed to be considered on
the basis of seniority for in country adoption. It
is submitted that there are more than 22,000 parents
waiting, according to seniority, for in country
10
adoption, respondents cannot stroll march over them.
It is submitted that offer to adopt Shomya, which was
sent on 01.01.2018 was on the basis of first
application of the respondents and after the
respondents informed in writing on 04.01.2018 about
their second registration dated 05.11.2017, the
communication was sent to the respondents that
decision regarding their seniority will be taken by
the competent authority. The communication was sent
on 15.03.2018 to the respondents that they cannot be
given the benefit of their seniority on the basis of
their first application and they have to wait for
receiving an offer as overseas citizen of India. It
is submitted that there were no special circumstances
on the basis of which any exception can be made in
favour of the respondents as has been directed by the
High Court.
6. Learned counsel appearing for the respondents
submits that the Act, 2015 and the Regulations, 2017
do not provide for any mechanism when Indian parents,
who have already got themselves registered for
adoption acquires the foreign citizenship. It is
submitted that as per Regulation 41 of the
11
Regulations, 2017, a common seniority list is
contemplated, which means that respondents shall
retain their seniority position on the basis of first
application. Thus, offer to adopt Shomya to the
respondents cannot be faulted. It is submitted that
respondent Nos.1 and 2 being fully competent for
applying for adoption, who are still qualified and
economically stable and eager to adopt the child
cannot be denied their right merely because the
respondent No.1 was conferred the US citizenship on
06.12.2016, i.e., much after submission of their
first application as Indian parent.
7. It is submitted that even though respondent Nos.1
and 2 have been conferred US citizenship, both are
residing in Bangalore, India and in both the
applications, their residence is shown as India,
hence in peculiar circumstances, they have rightly
been offered child Shomya for adoption. It is
submitted that the respondent Nos. 1 and 2 bonafide
has not concealed any information and has bonafide
submitted their application on 05.11.2017 as Overseas
Citizen of India and the fact that immediately when
they received offer for adoption of Shomya on
12
02.01.2018, on 04.01.2018, they sent an e-mail giving
details of both the applications. The respondents
have been bonafide pursuing their claim for adoption,
they having not been blessed with a child even though
after happy marital life of more than ten years. It
is submitted that the High Court has rightly held
that present case can be considered as an exceptional
case and without making it a precedent, the adoption
in favour of the respondents be allowed to maintain.
8. We have considered the submissions of the learned
counsel for the parties and have perused the records.
9. The 2015 Act, Chapter VIII deals with adoption.
Section 56 sub-section (1) provides that adoption
shall be resorted to for ensuring right to family for
the orphan, abandoned and surrendered children, as
per the provisions of the Act, the rules made
thereunder and the adoption regulations framed by the
authority. Section 57 deals with eligibility of
prospective adoptive parents, which is as follows:-
57. Eligibility of prospective adoptive
parents.--(1) The prospective adoptive
parents shall be physically fit,
financially sound, mentally alert and
highly motivated to adopt a child for
providing a good upbringing to him.
13
(2) In case of a couple, the consent of
both the spouses for the adoption shall be
required.
(3) A single or divorced person can also
adopt, subject to fulfilment of the
criteria and in accordance with the
provisions of adoption regulations framed
by the Authority.
(4) A single male is not eligible to adopt
a girl child.
(5) Any other criteria that may be
specified in the adoption regulations
framed by the Authority
10. Section 58 deals with procedure for adoption by
Indian prospective adoptive parents living in India,
which is to the following effect:-
58. Procedure for adoption by Indian
prospective adoptive parents living in
India.--(1) Indian prospective adoptive
parents living in India, irrespective of
their religion, if interested to adopt an
orphan or abandoned or surrendered child,
may apply for the same to a Specialised
Adoption Agency, in the manner as provided
in the adoption regulations framed by the
Authority.
(2) The Specialised Adoption Agency shall
prepare the home study report of the
prospective adoptive parents and upon
finding them eligible, will refer a child
declared legally free for adoption to them
along with the child study report and
medical report of the child, in the manner
as provided in the adoption regulations
framed by the Authority.
14
(3) On the receipt of the acceptance of the
child from the prospective adoptive parents
along with the child study report and
medical report of the child signed by such
parents, the Specialised Adoption Agency
shall give the child in pre-adoption foster
care and file an application in the court
for obtaining the adoption order, in the
manner as provided in the adoption
regulations framed by the Authority.
(4) On the receipt of a certified copy of
the court order, the Specialised Adoption
Agency shall send immediately the same to
the prospective adoptive parents.
(5) The progress and well-being of the
child in the adoptive family shall be
followed up and ascertained in the manner
as provided in the adoption regulations
framed by the Authority.
11. The next provision, which needs to be noticed is
Section 59, which provides for procedure for intercountry adoption of an orphan or abandoned or
surrendered child, which is as follows:-
59. Procedure for inter-country adoption
of an orphan or abandoned or surrendered
child.--(1) If an orphan or abandoned or
surrendered child could not be placed with
an Indian or non-resident Indian
prospective adoptive parent despite the
joint effort of the Specialised Adoption
Agency and State Agency within sixty days
from the date the child has been declared
legally free for adoption, such child shall
be free for inter-country adoption:
Provided that children with physical and
mental disability, siblings and children
above five years of age may be given
15
preference over other children for such
inter-country adoption, in accordance with
the adoption regulations, as may be framed
by the Authority.
(2) An eligible non-resident Indian or
overseas citizen of India or persons of
Indian origin shall be given priority in
inter-country adoption of Indian children.
(3) A non-resident Indian or overseas
citizen of India, or person of Indian
origin or a foreigner, who are prospective
adoptive parents living abroad,
irrespective of their religion, if
interested to adopt an orphan or abandoned
or surrendered child from India, may apply
for the same to an authorised foreign
adoption agency, or Central Authority or a
concerned Government department in their
country of habitual residence, as the case
may be, in the manner as provided in the
adoption regulations framed by the
Authority.
(4) The authorised foreign adoption agency,
or Central Authority, or a concerned
Government department, as the case may be,
shall prepare the home study report of such
prospective adoptive parents and upon
finding them eligible, will sponsor their
application to Authority for adoption of a
child from India, in the manner as provided
in the adoption regulations framed by the
Authority.
(5) On the receipt of the application of
such prospective adoptive parents, the
Authority shall examine and if it finds the
applicants suitable, then, it will refer
the application to one of the Specialised
Adoption Agencies, where children legally
free for adoption are available.
16
(6) The Specialised Adoption Agency will
match a child with such prospective
adoptive parents and send the child study
report and medical report of the child to
such parents, who in turn may accept the
child and return the child study and
medical report duly signed by them to the
said agency.
(7) On receipt of the acceptance of the
child from the prospective adoptive
parents, the Specialised Adoption Agency
shall file an application in the court for
obtaining the adoption order, in the manner
as provided in the adoption regulations
framed by the Authority.
(8) On the receipt of a certified copy of
the court order, the specialised adoption
agency shall send immediately the same to
Authority, State Agency and to the
prospective adoptive parents, and obtain a
passport for the child.
(9) The Authority shall intimate about the
adoption to the immigration authorities of
India and the receiving country of the
child.
(10) The prospective adoptive parents shall
receive the child in person from the
specialised adoption agency as soon as the
passport and visa are issued to the child.
(11) The authorised foreign adoption
agency, or Central Authority, or the
concerned Government department, as the
case may be, shall ensure the submission of
progress reports about the child in the
adoptive family and will be responsible for
making alternative arrangement in the case
of any disruption, in consultation with
Authority and concerned Indian diplomatic
mission, in the manner as provided in the
17
adoption regulations framed by the
Authority.
(12) A foreigner or a person of Indian
origin or an overseas citizen of India, who
has habitual residence in India, if
interested to adopt a child from India, may
apply to Authority for the same along with
a no objection certificate from the
diplomatic mission of his country in India,
for further necessary actions as provided
in the adoption regulations framed by the
Authority
12. The respondent Nos.1 and 2 submitted their
application as prospective adoptive parents living in
India. Although, on the date of submission of
application, respondent No.2 was already a US
citizen, the respondent No.1 being Indian citizen,
the application was fully maintainable as per the
provisions of Regulations and as per the guidelines
applicable at the relevant time as Indian prospective
adoptive parents. Even Regulation 21(1) of
Regulations, 2017 provides that if one of the
prospective adoptive parents is foreigner and other
is an Indian, such case shall be treated at par with
Indians living in India. After the respondent No.1
acquired the US citizenship on 06.12.2016 and OCI
card was issued to respondent No.1 on 27.04.2017,
18
second application was submitted on 05.11.2017 by the
respondents for inter-country adoption both having
become US citizens. In view of the fact that both
had become US citizens by 06.12.2016, they were not
eligible for adoption as Indian prospective adoptive
parents living in India. Mere fact that Act or
Regulations does not provide for any mechanism to
upload any further information in first registration
cannot alter the legal position and consequences of
acquiring the foreign citizenship by an Indian. The
consequences of obtaining US citizenship of
respondent Nos.1 and 2 shall take its effect
immediately.

13. The submission of learned counsel for the
respondents that Regulation 41 deals with common
seniority list also need to be noted. Regulation 41
of the Regulations, 2017 is as follows:-
41. Seniority of the prospective adoptive
parents.- (1) The prospective adoptive
parents shall be referred children on the
basis of a single seniority list, which
shall be maintained from the date of
registration and other criteria as
stipulated under these regulations.
(2) The seniority of resident Indians shall
be based on the date of online registration
and submission of the documents, except for
19
Home Study Report, in Child Adoption
Resource Information and Guidance System.
(3) The seniority of Non Resident Indian or
Overseas Citizen of India or foreign
prospective adoptive parents shall be based
on the date of online registration and
submission of the requisite documents
alongwith Home Study Report in Child
Adoption Resource Information and Guidance
System.
(4) Prospective adoptive parents shall be
allowed to change the State preference once
within sixty days from the date of
registration and in case they change the
State preference after sixty days from the
date of registration, they shall be placed
at the bottom of the seniority list in the
changed State.
(5) Seniority of prospective adoptive
parents registered as single, but married
later shall be counted from the date of
registration as single after receipt of
fresh Home Study Report.
(6) Prospective adoptive parents registered
for normal child, shall be able to adopt a
special need child or hard to place child
with the same registration.
14. It is also submitted that prior to Regulations,
2017, there were two separate seniority lists, which
were maintained under the Guidelines, 2015, which has
been now made a single seniority list. Even if there
is a single seniority list, now contemplated by
Regulation 41, a placement in the seniority list with
20
regard to resident Indian and non-resident Indian or
overseas citizen of India are based on different
yardsticks as provided in Regulations 41(2) and
41(3). Even if the common seniority list has to be
utilised for the purpose of in country adoption and
inter-country adoption as per the respective
categories, the difference between in country
adoption and inter-country adoption cannot be lost
sight or given a go bye by the mere fact that a
common seniority list is maintained. It is true that
Regulation 41 or any other Regulation does not
contemplate a situation when a resident Indian after
acquiring the foreign citizenship submits a fresh
registration, what is the consequence and value of
its first registration. Even though regulations are
silent and do not provide for any mechanism or any
answer to such fact situation, the natural
consequences of acquiring foreign citizenship shall
follow. We, thus, find force in the submission of
the learned ASG that the right of respondent Nos. 1
and 2 for adoption as resident Indian is lost after
respondent No.1 having acquired the US citizenship on
06.12.2016. Offer of the child to the respondent
21
Nos. 1 and 2 was based on their first application
dated 19.07.2016, in which if the clause of foreign
citizenship is ignored, was in accordance with the
Act and the Rules. Further, whether the factum of
respondent No.1 acquiring US citizenship on
06.12.2016 should be ignored for the purposes of
adoption or not is the question, which is required to
be addressed and answered in these appeals.
15. Section 58 and 59 provides for two different
mechanisms for adoption. As per Section 59(1), if an
orphan or abandoned or surrendered child could not be
placed with an Indian or non-resident Indian
prospective adoptive parents despite the joint effort
of the Specialised Adoption Agency and State Agency
within sixty days from the date the child has been
declared legally free for adoption, such child shall
be free for inter-country adoption. Thus, sixty days
period has to be elapsed from the date when the child
has been declared legally free for adoption. In the
present case, child was declared free for adoption on
14.12.2017 by Child Welfare Committee, Patna, Bihar.
Before expiry of sixty days, child could not have
been offered for adoption to parents, who are
22
eligible for adoption under Section 59. We are,
however, not oblivious to the fact that respondent
Nos.1 and 2 had been bonafide pursuing their
applications for adoption, initially as resident
Indians and thereafter even as overseas citizens of
India. As per Section 57, both the respondent Nos.1
and 2 are fully eligible and competent to adopt the
child. It was under the circumstances as noticed
above that the child Shomya was offered to respondent
Nos.1 and 2, who rightly communicated their
acceptance and communicated with the child and are
willing to take child in adoption and to take all
care and provide good education to her. We have no
doubt in the bonafide or the competence of respondent
Nos.1 and 2 in their effort to take the child in
adoption, but the statutory procedure and the
statutory regime, which is prevalent as on date and
is equally applicable to all aspirants, i.e., Indian
prospective adoptive parents and prospective adoptive
parents for inter-country adoption, cannot be lost
sight. However, by virtue of Section 59(2), the
respondent Nos.1 and 2 can at best may be given
priority in inter-country adoption, they being
23
eligible overseas citizens of India and further due
to consequences of events and facts as noticed above.
16. In view of the foregoing discussions, we are of
the view that ends of justice be served in disposing
the Civil Appeals arising out of SLP (C) Nos. 1476-
1477 of 2019 in following manner:
(i) The decision dated 27.02.2018 as
communicated to the respondent Nos. 1 and 2
by e-mail dated 15.03.2018 is upheld.
(ii) Judgments of learned Single Judge as well
as of Division Bench in so far as it
directs to consider and examine the
application of respondent Nos. 1 and 2 on
the basis of first registration dated
19.07.2016 are set aside.
(iii) The competent authority shall again notify
the child Shomya legally free for adoption,
which notification shall be issued within
one week from today.
(iv) That in event, within sixty days from the
date the child(Shomya) is declared as
legally free for adoption is not taken by
or adopted by Indian prospective adoptive
24
parents, the child Shomya shall be given in
adoption to the respondent Nos.1 and 2 in
inter-country adoption. All consequential
steps thereafter shall be completed.
17. Now, coming to Civil Appeals arising out of SLP
(C) Nos. 1478-1479, these appeals have been filed
against the order dated 04.09.2018 passed in C.C.C.
Nos. 1690-1691 of 2018, the contempt proceedings
having been closed by the Division Bench by its
impugned judgment dated 04.09.2018, nothing more is
required to be said in that regard. We, however,
observe that filing of the contempt applications in
the fact situation of the present case was illadvised. Both the contempt applications deserve to
be rejected. The appeals are allowed and contempt
applications stand rejected. Parties shall bear
their own costs.
......................J.
 ( ASHOK BHUSHAN )
......................J.
 ( K.M. JOSEPH )
New Delhi,
February 25, 2019.
25

Medical Negligence -vs- wrong diagnosis.= it could be termed as a case of wrong diagnosis and certainly not one of medical negligence. = whether her admittance and discharge from respondent No.1-Hospital was the sole, or even the most likely cause of her death. The death had been caused by a multiplicity of factors. In the end, we may also note that the medical certificate issued for the cause of death by Fortis Escorts Hospital cited septic shock due to multiple organ failure as the immediate cause of death, with her diabetic condition being an antecedent cause, as also the multiple malignancies, post chemotherapy and radiotherapy all contributing to her passing away. 17. We appreciate the pain of the appellant, but then, that by itself cannot be a cause for awarding damages for the passing away of his wife. We have sympathy for the appellant, but sympathy cannot translate into a legal remedy. 18. We cannot fault the reasoning of the NCDRC. Thus, the result is that the appeal is dismissed, leaving the parties to bear their own costs.

Hon'ble Mr. Justice Sanjay Kishan Kaul 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2024 of 2019
{Arising out of SLP(C) No.32721/2017}
VINOD JAIN ….Appellant
versus
SANTOKBA DURLABHJI
MEMORIAL HOSPITAL & ANR. ….Respondents
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. Leave granted.
2. The sad demise of the wife of the appellant on 31.10.2011 has
resulted in the legal proceedings being initiated by the appellant on a
belief that the cause of her death was medical negligence. The State
Consumer Disputes Redressal Commission, Rajasthan (for short ‘State
Commission’) found in favour of the appellant vide order dated
11.5.2016, but the said order was upset in appeal in the National
1
Consumer Disputes Redressal Commission, New Delhi (for short
‘NCDRC’) vide order dated 1.8.2017. We are, thus, faced with the
present appeal.
3. Late Mrs. Sudha Jain was the wife of the appellant, who was
suffering from various diseases – oesophageal cancer (past history of
colon and breast cancer), hypertension and type 2 diabetes. The occasion
to be admitted to respondent No.1-Hospital and being treated by
respondent No.2-Doctor on 15.10.2011 was chills and fever as also for
re-insertion of nasal feed tube, stated to be dislodged due to severe
dysphagia. She was attended to by respondent No.2-Doctor for the chill
and fever, and nasal feed tube was inserted on the same day by Dr.
Anurag Govil, with some allied tests prescribed to be carried out. One of
the tests was a Complete Blood Count Report, which found that the
WBC count was high, indicative of infection. She had also running
temperature of 104 degrees Fahrenheit, and her medical treatment
commenced with intravenous administration of injection Magnex of 1.5
mg. As per the medical reports, the cannula used for intravenous
treatment stopped functioning and respondent No.2-Doctor prescribed a
further antibiotic tablet, Polypod (Cefpodoxime) to be orally
2
administered through the nasal tube. The patient was discharged from
respondent No.1-Hospital on 18.10.2011, at which stage also her WBC
count was high and she was prescribed to continue taking her medicines
for a period of 5 days post discharge, which apparently was administered
to her, as per the appellant.
4. The appellant claimed that on 23.10.2011, his wife went into coma
and had to be admitted to a nearby Heart and General Hospital, where
she was put on life-support ventilation system. The WBC count of the
wife of the appellant had risen even further and the systolic BP was only
40. Her health continued to deteriorate and she was required to be
shifted to the Fortis Escorts Hospital, where she finally succumbed to her
illness on 31.10.2011.
5. The appellant, after the initial period of mourning, is stated to have
consulted various doctors, including his son, who is stated to be a doctor
practicing in USA. It is his belief, on the basis of such discussion, that
the respondents were guilty of medical negligence in the manner in
which medical treatment was administered to his wife and her subsequent
discharge from respondent No.1-Hospital. The appellant filed a
complaint with the Medical Council of Rajasthan, a statutory body
3
constituted under the Rajasthan Medical Act, 1952, but that endeavour
proved to be unsuccessful as no case of medical negligence was found in
the given facts of the case, in terms of the order passed on 13.7.2012.
The process of coming to this conclusion included the response of
respondent No.2-Doctor to a panel of eleven doctors, which scrutinised
the complaint and the material placed before the panel, by the appellant.
The further appeal of the appellant, before the Medical Council of India
was rejected as time barred on 8.3.2013. The next legal journey of the
appellant began by approaching the State Commission, by filing a
consumer complaint. The appellant sought to make out a case of: (a)
inappropriate and ineffective medication; (b) failure to restart the cannula
for IV medication; (c) premature discharge of the deceased despite her
condition warranting treatment in the ICU; (d) oral administration of
Polypod antibiotic, despite her critical condition, which actually required
intravenous administration of the medicine.
6. On the other hand, the stand of the respondents was that when the
patient was discharged, she was afebrile, her vitals were normal and she
was well-hydrated, with no infection in her chest or urinary tract. She
was stated to be clinically stable from 15.10.2011 to 17.10.2011 and that
4
is why she was so discharged on 18.10.2011, with proper medical
prescriptions for the next 5 days. However, the State Commission found
in favour of the appellant and directed a compensation of Rs.15 lakh and
costs of Rs.51,000/- to be paid to the appellant. Aggrieved by the said
order of the State Commission, the respondents preferred an appeal
before the NCDRC, which exonerated the respondents of any medical
negligence vide impugned order dated 1.8.2017. It was opined that at the
highest, it could be termed as a case of wrong diagnosis and certainly not
one of medical negligence.
7. In order to appreciate the opinion of the NCDRC, it would be
appropriate to lay down the legal principles which would apply in cases
of medical negligence.
8. ‘Negligence’ has been defined in the Halsbury’s Laws of England,
4
th Edn., Vol. 26 pp.17-18 and extracted in Kusum Sharma & Ors. v.
Batra Hospital & Medical Research Centre & Ors.1
 as under:
“22. Negligence. – Duties owed to patient. A person who holds
himself out as ready to give medical advice or treatment
impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person, whether he is a
registered medical practitioner or not, who is consulted by a
patient, owes him certain duties, namely, a duty of care in
deciding whether to undertake the case; a duty of care in
1 (2010) 3 SCC 480
5
deciding what treatment to give; and a duty of care in his
administration of that treatment. A breach of any of these duties
will support an action for negligence by the patient”
9. A fundamental aspect, which has to be kept in mind is that a doctor
cannot be said to be negligent if he is acting in accordance with a practice
accepted as proper by a reasonable body of medical men skilled in that
particular art, merely because there is a body of such opinion that takes a
contrary view (Bolam v. Friern Hospital Management Committee2
). In
the same opinion, it was emphasised that the test of negligence cannot be
the test of the man on the top of a Clapham omnibus. In cases of medical
negligence, where a special skill or competence is attributed to a doctor,
a doctor need not possess the highest expert skill, at the risk of being
found negligent, and it would suffice if he exercises the ordinary skill of
an ordinary competent man exercising that particular art. A situation,
thus, cannot be countenanced, which would be a disservice to the
community at large, by making doctors think more of their own safety
than of the good of their patients.
10. This Court in another judgment in Jacob Mathew v. State of
2 (1957) 1 WLR 582 :: (1957) 2 All ER 118
6
Punjab3
 dealt with the law of negligence in respect of professionals
professing some special skills. Thus, any individual approaching such a
skilled person would have a reasonable expectation of a degree of care
and caution, but there could be no assurance of the result. A physician,
thus, would not assure a full recovery in every case, and the only
assurance given, by implication, is that he possesses the requisite skills in
the branch of the profession, and while undertaking the performance of
his task, he would exercise his skills with reasonable competence. Thus,
a liability would only come, if (a) either the person (doctor) did not
possess the requisite skills, which he professed to have possessed; or (b)
he did not exercise, with reasonable competence in a given case, the skill
which he did possess. It was held not to be necessary for every
professional to possess the highest level of expertise in that branch in
which he practices. In the said opinion, a reference was, once again,
made to the Halsbury’s Laws of England as under:
“To establish liability on that basis it must be shown (1) that
there is a usual and normal practice; (2) that the defendant has
not adopted it; and (3) that the course in fact adopted is one no
professional man of ordinary skill would have taken had he
been acting with ordinary care.”
3 (2005) 6 SCC 1
7
11. In Hucks v. Cole4
, Lord Denning speaking for the Court observed
as under:
“A medical practitioner was not to be held liable simply
because things went wrong from mischance or misadventure or
through an error of judgment in choosing one reasonable course
of treatment in preference of another. A medical practitioner
would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field.”
12. In para 89 of the judgment in Kusum Sharma & Ors.5
 the test had
been laid down as under:
“89. On scrutiny of the leading cases of medical negligence
both in our country and other countries specially the United
Kingdom, some basic principles emerge in dealing with the
cases of medical negligence. While deciding whether the
medical professional is guilty of medical negligence following
well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission
to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a
prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The
negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon
an error of judgment.
III. The medical professional is expected to bring a
reasonable degree of skill and knowledge and must exercise
4 (1968) 118 New LJ 469
5 (supra)
8
a reasonable degree of care. Neither the very highest nor a
very low degree of care and competence judged in the light
of the particular circumstances of each case is what the law
requires.
IV. A medical practitioner would be liable only where his
conduct fell below that of the standard so far reasonably
competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope
for genuine difference of opinion and one professional
doctor is clearly not negligent merely because his
conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a
procedure which involves higher element of risk, but which
he honestly believes as providing greater chances of success
for the patient rather than a procedure involving lesser risk
but higher chances of failure. Just because a professional
looking to the gravity of illness has taken higher element of
risk to redeem the patient out of his/her suffering which did
not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as
he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in
preference to the other one available, he would not be liable
if the course of action chosen by him was acceptable to the
medical profession.
VIII. It would not be conducive to the efficiency of the
medical profession if no doctor could administer medicine
without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society
to ensure that the medical professionals are not
unnecessarily harassed or humiliated so that they can
perform their professional duties without fear and
9
apprehension.
X. The medical practitioners at times also have to be saved
from such a class of complainants who use criminal process
as a tool for pressurizing the medical professionals/hospitals
particularly private hospitals or clinics for extracting
uncalled for compensation. Such malicious proceedings
deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection
so long as they perform their duties with reasonable skill
and competence and in the interest of the patients. The
interest and welfare of the patients have to be paramount for
the medical professionals.”
13. Now turning to the application of the aforesaid principles to the
facts at hand. It is material to note that the respondent No.1-Hospital
promptly attended to the wife of the appellant. Respondent No.2,
physician, once again, attended to her promptly, and started her on
antibiotic treatment. The nasal feed tube was re-inserted promptly.
However, in the early hours on the next day, on 16.10.2011, the cannula
stopped functioning and instead of re-cannulating the patient, oral
administration of the antibiotic Polypod was found justified. It is this
aspect, which according to the appellant, amounts to medical negligence.
The explanation offered by respondent No.2-Doctor was that when he
attended the patient at 11:00 a.m. on 16.10.2011, he found that the drip
10
had been disconnected, on account of all peripheral veins being blocked
due to past chemotherapies, and that the drip had been stopped, the night
before itself, at the instance of the appellant. Taking into consideration
the fact that the patient was normal, afebrile, well-hydrated and displayed
normal vitals, the oral administration of the tablet was prescribed. This,
according to the NCDRC was the professional and medical assessment
by respondent No.2-Doctor, arrived at on the basis of a medical condition
of the patient, and could not constitute medical negligence.
14. We see no reason to differ from the view expressed by the
NCDRC, keeping in mind the test enunciated aforesaid. Respondent
No.2-Doctor, who was expected to bring a reasonable degree of skill,
knowledge and care, based on his assessment of the patient, prescribed
oral administration of the antibiotic in that scenario, especially on
account of the past medical treatments of the wife of the appellant,
because of which the veins for administration of IV could not be located.
Her physical condition was found to be one where the oral administration
of the drug was possible.
15. The appellant has also sought to make out a case that the blood
culture report required his wife to be kept in the hospital. This was again
11
a judgment best arrived at by respondent No.2-Doctor, based on her other
stable conditions, with only the WBC count being higher, which, as per
the views of the respondent No.2-Doctor, could be treated by
administration of the antibiotic drug orally, which was prescribed for 5
days, and as per the appellant, was so administered. In the perception of
the doctor, the increase in lymphocytes in the blood count was the result
of the patient displaying an improved immune response to the infection.
It is in this context that the NCDRC opined that at best, it could be
categorised as a possible case of wrong diagnosis.
16. In our opinion the approach adopted by the NCDRC cannot be said
to be faulty, while dealing with the role of the State Commission, which
granted damages on a premise that respondent No.2-Doctor could have
pursued an alternative mode of treatment. Such a course of action, as a
super-appellate medical authority, could not have been performed by the
State Commission. There was no evidence to show any unexplained
deviation from standard protocol. It is also relevant to note that the
deceased was medically compromised by the reason of her past illnesses.
The deceased was admitted to two other hospitals, post her discharge
from respondent No.1-Hospital. The moot point was whether her
12
admittance and discharge from respondent No.1-Hospital was the sole, or
even the most likely cause of her death. The death had been caused by a
multiplicity of factors. In the end, we may also note that the medical
certificate issued for the cause of death by Fortis Escorts Hospital cited
septic shock due to multiple organ failure as the immediate cause of
death, with her diabetic condition being an antecedent cause, as also the
multiple malignancies, post chemotherapy and radiotherapy all
contributing to her passing away.
17. We appreciate the pain of the appellant, but then, that by itself
cannot be a cause for awarding damages for the passing away of his wife.
We have sympathy for the appellant, but sympathy cannot translate into a
legal remedy.
18. We cannot fault the reasoning of the NCDRC. Thus, the result is
that the appeal is dismissed, leaving the parties to bear their own costs.
..….….…………………….J.
[L. Nageswara Rao]
...……………………………J.
[Sanjay Kishan Kaul]
New Delhi.
February 25, 2019.
13