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Saturday, September 14, 2024

Constitution of India – Art. 16 (1), (4) – Reservation for the persons with disabilities – Direct recruitment to the cadre of Civil Judge – Appellants, suffering from disabilities participated in the selection process under the disabled category and were declared unsuccessful in Preliminary examination – In the results declared, the cut off marks shown for each of the categories mentioned in the advertisement, however did not show for the category of persons with benchmark disabilities – Aggrieved thereagainst, writ petition by the appellants, dismissed by the High Court – Legality of: Held: No illegality or infirmity in the impugned judgments and orders passed by the High Court

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[2024] 8 S.C.R. 488 : 2024 INSC 615

Rekha Sharma v. The Rajasthan High Court, Jodhpur & Anr.

(Civil Appeal No. 5051 of 2023)

21 August 2024

[Bela M. Trivedi* and Satish Chandra Sharma, JJ.]

Issue for Consideration

The High Court while declaring the result of Preliminary Examination for the post of the cadre of Civil Judge, showed the cut off marks for each of the categories mentioned in the advertisement, however did not show the cut off marks for the category of Persons with benchmark disabilities. Issue arose as to the legality of the action of the High Court.

Headnotes

Constitution of India – Art. 16 (1), (4) – Reservation for the persons with disabilities – Direct recruitment to the cadre of Civil Judge – Appellants, suffering from disabilities participated in the selection process under the disabled category and were declared unsuccessful in Preliminary examination – In the results declared, the cut off marks shown for each of the categories mentioned in the advertisement, however did not show for the category of persons with benchmark disabilities – Aggrieved thereagainst, writ petition by the appellants, dismissed by the High Court – Legality of:

Held: No illegality or infirmity in the impugned judgments and orders passed by the High Court – Candidates who consciously took part in the process of selection cannot be permitted to question the advertisement or the methodology adopted by the respondents for making selection, on their having been declared as unsuccessful in the Preliminary Examinations – Reservation for the persons with disabilities has been treated as Horizontal Reservation-reservation under Clause (1) of Art. 16, and not the Vertical reservation-reservation under Clause (4) of Art. 16 – Reservation in favour of the Persons with disabilities was an Overall Horizontal Reservation and was not compartmentalised reservation – Respondents-High Court have declared the cut off marks for the persons falling under Compartmentalised Horizontal Reservation and not for the Overall Horizontal Reservation under which the appellants fall – Persons with benchmark disabilities for being adjusted in the category for which he or she had applied, had to secure the minimum cut off marks fixed for such category under which he or she had applied – Such fixation of cut off marks for other categories and non-fixation of cut off marks for the category of persons with benchmark disability could neither be said to be arbitrary nor violative of any of the fundamental rights of the appellants – Furthermore, nothing in the advertisement, Rules of 2010 under which the recruitment process was undertaken, also none of the notifications or amendment in the RJS Rules, 2010 make it mandatory on part of the respondents to declare separate cut off marks for the Persons with benchmark disabilities – No provision either in the Act of 2016 or in the Rules of 2018 could be said to have been violated by the respondents by not fixing the cut off marks for the Persons with benchmark disabilities – Respondents thus, rightly showed the cut off marks for all the categories except for the category of persons with benchmark disabilities – Rights of Persons with Disabilities Act, 2016 – Rajasthan Rights of Persons with Disabilities Rules, 2018 – Rajasthan Judicial Services Rules, 2010 – Judiciary. [Paras 8-12, 15-17]

Constitution of India – Art.16 – Reservation – Horizontal Reservation – Overall reservations and Compartmentalised reservations – Concept of:

Held: Horizontal Reservation is of two types-Compartmentalised Horizontal Reservation and Overall Horizontal Reservation – Under Compartmentalised Horizontal Reservation, the proportionate vacancies are reserved in each vertical reserved category – However, in case of Overall Horizontal Reservation, the Reservation is provided on the total post advertised i.e. such reservation is not specific to each vertical category – Where the seats reserved for the Horizontal Reservations are proportionately divided amongst the Vertical (Social) Reservations and are not intertransferable, it would be a case of Compartmentalised Reservations, whereas in the Overall Reservation, while allocating the special reservation candidates to their respective social reservation category, the Overall Reservation in favour of special reservation categories has to be honoured – Thus, the Special reservations cannot be proportionately divided among the Vertical (Social) reservation categories, and the candidates eligible for special reservation categories have to be provided overall seats reserved for them, either by adjusting them against any of the Social/Vertical reservations or otherwise, and thus they are intertransferable. [Paras 9, 14]

Case Law Cited

Indra Sawhney & Others v. Union of India and Others [1992] Suppl. 2 SCR 454 : (1992) Supp. 3 SCC 217; Anil Kumar Gupta and Others v. State of U.P. and Others [1995] Suppl. 2 SCR 396 : (1995) 5 SCC 173 – referred to.

List of Acts

Rajasthan Judicial Services Rules, 2010; Rajasthan Rights of Persons with Disabilities Rules, 2018; Constitution of India.

List of Keywords

Disabled category; Persons with benchmark disabilities; Cut off marks for the category of Persons with benchmark disabilities; Non-fixation of cut off marks for the category of persons with benchmark disability; Rights of Persons with Disabilities; Cadre of Civil Judge; Selection process; Preliminary examination; Compartmentalised Horizontal Reservation; Overall Horizontal Reservation; Recruitment process; Horizontal Reservation; Vertical reservation; Reservation for women (widow or divorcee); Compartmentalised reservation; Overall reservation; Vertical (Social) Reservations; Special reservation; Social/Vertical reservations.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5051 of 2023

From the Judgment and Order dated 06.04.2022 of the High Court of Judicature for Rajasthan at Jaipur in DBCWP No.1868 of 2022

With

Civil Appeal No. 5052 of 2023

Appearances for Parties

Sridhar Potaraju, Sr. Adv., Sudhanshu S. Pandey, Gaichangpou Gangmei, Ishat Singh, Ms. Nisha Pandey, Aayush, Maitreya Mahaley, Lalit Mohan, Yimyanger Longkumer, Ms. Niharika Singh, Sai Swaroop, Sameer Shrivastava, Ms. Yashika Varshney, Dr. Sangeeta Verma, Advs. for the Appellant.

Ms. Pinky Anand, Sr. Adv., Samrat Pasricha, Ms. Saudamini Sharma, Ms. Asees Jasmine Kaur, Mukul Kumar, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Bela M. Trivedi, J.

1.Both the appeals having common question of law and facts were heard together and are being decided by this common judgment.

2.The facts in nutshell are that the respondent High Court had issued an advertisement for the direct recruitment of 120 posts of Civil Judge and Judicial Magistrate under the Civil Judge Cadre. The appellant-Ms. Rekha Sharma, having 40% permanent disability in relation to her eyes, had applied for the said post. The appellant-Ratan Lal having locomotor disability i.e. 55% permanent physical impairment in relation to his right upper limb, had also applied for the said post. Both having appeared in the Preliminary Examination were declared “not successful.” As per the result declared on 11.01.2022, the cut off marks in respect of every category mentioned in the advertisement were shown except the cut off marks for the category of Persons with benchmark disabilities.

3.Being aggrieved by the said result, the appellant-Ratan Lal (in C.A. No. 5052/2023) had preferred D.B. Civil Writ Petition No. 1436 of 2022, which came to be dismissed by the High Court vide the judgment and order dated 02.03.2022. The appellant-Rekha Sharma (in C.A. No. 5051/2023) had also filed D.B. Civil Writ Petition No. 1868 of 2022 which came to be dismissed by the High Court vide the order dated 06.04.2022 relying upon the judgment dated 02.03.2022 passed in Writ Petition No. 1436 of 2022.

4.The bone of contention raised by the learned counsels appearing for both the appellants in the instant appeals is that the respondents while declaring the result of Preliminary Examination showing the cut off marks for each of the categories mentioned in the advertisement in question, had not shown the cut off marks for the category of Persons with benchmark disabilities. According to them, the said action of the respondents was discriminatory and violative of their Fundamental Rights enshrined in Article 14, 16 and 21 of the Constitution of India, and also violative of the Rajasthan Judicial Service Rules, 2010 read with Rajasthan Rights of Persons with Disabilities Rules, 2018.

5.According to the learned Senior Counsel Ms. Pinky Anand appearing for the respondents, the appellant-Rekha Sharma having obtained 57 marks in the EWS category for which the cut off marks were 69 marks, and the appellant-Ratan Lal having secured 59 marks in the OBC-NCL category for which the cut off marks were 67 marks, were found to be not qualified for appearing in the Main Examination. She further submitted that the entire selection process was over on 30.08.2022 and the appointments of successful candidates have already been made by the respondents on 09.03.2023. The fresh advertisement for the vacancies of 2022-2024 was issued on 09.04.2024 and the result of the Preliminary Examination in respect of the said advertisement has also been declared on 15.07.2024.

6.Before dealing with the rival contentions raised by the learned counsels for the parties, let us refer to the relevant paragraphs of the advertisement dated 22.07.2021 in question.

“1. The Rajasthan High Court, Jodhpur under the Rajasthan Judicial Service Rules, 2010 (As amended) is inviting online application in the prescribed online format for direct recruitment on 120 vacant posts (89 posts of 2020 and 31 posts of 2021) of Civil Judge and Judicial Magistrate under the Civil Judge Cadre on probation at the pay scale of 27700-770-33090-920-40450-1080-44770.

2-3…………..

4. Number of Vacant Posts and Reservations: -

Total no. of vacancies

Year

General

Reserved

Persons with benchmark disabilities

OBC

EWS

MBC

2020 (upto Dec. 2020)

35 out of which 10 posts for women out of 10 posts 02 posts reserved for widow

14 out of which 04 posts for women out of 04 posts 01 post for widow

10 out of which 03 posts for women

18 out of which 05 posts for women out of 05 posts 01 post for widow

08 out of which 02 post for women

04 out of which 01 post for woman

Out of 89 vacancies 04 posts for persons with benchmark disabilities

2021 (upto Dec. 2021)

14 out of which 04 posts for women out of 4 posts 01 post reserved for widow

04 out of which 01 post for woman

06 out of which 01 post for woman

Out of 31 vacancies, 01 post for persons with benchmark disabilities

*Out of 05 posts reserved for persons with Benchmark Disabilities, 01 (one) post is reserved for blindness and low vision, 01 (one) for deaf and hard of hearing, 01 (one) for locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victim and muscular dystrophy and 02 (two) for autism, intellectual disability, specific learning disability and mental illness and multiple disabilities from amongst persons under clause (a) to (d) including deaf blindness in the posts identified for each disabilities.

5. In relation to reservation in various categories: -

i. The reservation in the reserved post for women (widow or divorcee) shall be category wise horizontal in the vacant posts, which means that the category (Scheduled Caste/Scheduled Tribes/Other Backward Class/Extremely Backward Class/ Economically Weaker Sections/General Category) of woman applicant selected will be adjusted in the same category for which she filed application.

ii. The reservation for the handicapped shall be horizontal against the total vacant posts, which means that category (Scheduled Caste/Scheduled Tribes/Other Backward Class/ Extremely Backward Class/ Economically Weaker Sections/General Category) of handicapped applicant selected will be adjusted in the same category for which he filed application.

iii. In case candidates for Scheduled Caste/Scheduled Tribes/Other Backward Class/ Extremely Backward Class/ Economically Weaker Sections/Women (Widow or divorcee)/handicapped of Rajasthan State is not available then these posts shall be filed as per the procedure and customs of the Rajasthan Judicial Service Rules, 2010.

iv. For selection to the post of general category, the candidates of reserved category should be eligible like the candidates of general category.

6-14 ----------

15. Scheme & Syllabus of Examination: -

(1) The competitive examination for the recruitment to the post of Civil Judge shall be conducted in two stages, i.e., Preliminary Examination and Main Examination. The marks obtained in the Preliminary Examination by the candidate who are declared qualified for admission to the Main Examination will not be counted for determining final merit.

(2) The number of candidate to be admitted to the Main Examination will be fifteen times the total number of vacancies (category-wise) but in the said range all those candidates who secure the same percentage of marks on the last cut-off will be admitted to the main examination.

Note: - To qualify for Main Examination, the candidates of SC/ST category shall have to secure minimum 40% marks and candidates of all other categories shall have to secure 45% minimum marks in the Preliminary Examination.

(3) The number of candidates to be admitted to the interview shall be, as far as practicable three times the total number of vacancies category-wise.

Provided that to qualify for interview, a candidate shall have to secure a minimum of 35% marks in each of the law papers and 40% marks in aggregate in the Main Examination.

Provided further that a candidate belonging to Scheduled Caste or Scheduled Tribe category, shall be deemed to be eligible for interview, if he has obtained minimum of 30% marks in each of the law papers and 35% marks in the aggregate in the Main Examination.

(4) It shall be compulsory to appear, in each and every paper of written test, as also before the lnterview Board for viva voce. A candidate, who has failed to appear in any of the written paper or before the board for viva voce shall not be recommended for appointment.

(5) The examination scheme for recruitment to the cadre of Civil Judge shall consist of :

l. Preliminary Examination (Objective Type)

ll. Main Examination (Subjective Type)

lll. Interview……”

7.As per the notice dated 11.01.2022 declaring the result of the Preliminary Examination held on 28.11.2021, the respondents had mentioned the following cut off marks for the respective categories mentioned in the advertisement.

Cut-off Marks

Gujarat Civil Services (Pay) Rules, 2002 – Rule 21 – Stepping up of pay – Assistant Professors in Government Colleges in Gujarat – Applicability of: Held: Rule of stepping up shall apply only if the anomaly is the direct result of the application of Rule 21 and only if the conditions specified therein are fulfilled – One of the condition stipulates that if even in the lower post, the junior Government employee draws a higher rate of pay than the senior, by way of fixation of the pay or by grant of advance increments, the same shall not be applicable to step up the pay of the senior Government employee – In the present case, the anomaly in pay is not a direct result of Rule 21 – Rather, the anomaly arose because of the fact that the Junior employees were granted the benefit of Senior Scale/Selection Grade Pay by taking into account the ad hoc services that they had rendered in the past – Hence, Rule 21 became inapplicable in the present case – Stepping up of pay in the present case would go against the principle of equity as the benefit cannot be given to those who were not even born in the cadre, for claiming benefits for the service that they have not actually rendered. [Paras 31, 32, 33]

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[2024] 8 S.C.R. 472 : 2024 INSC 608

Maheshkumar Chandulal Patel & Anr. v. The State of Gujarat & Ors.

(Civil Appeal No. 9059 of 2024)

14 August 2024

[Vikram Nath* and Prashant Kumar Mishra, JJ.]

Issue for Consideration

Applicability of the Rule of Stepping up of pay of a Government employee on the basis of the pay of his junior.

Headnotes

Gujarat Civil Services (Pay) Rules, 2002 – Rule 21 – Stepping up of pay – Assistant Professors in Government Colleges in Gujarat – Applicability of:

Held: Rule of stepping up shall apply only if the anomaly is the direct result of the application of Rule 21 and only if the conditions specified therein are fulfilled – One of the condition stipulates that if even in the lower post, the junior Government employee draws a higher rate of pay than the senior, by way of fixation of the pay or by grant of advance increments, the same shall not be applicable to step up the pay of the senior Government employee – In the present case, the anomaly in pay is not a direct result of Rule 21 – Rather, the anomaly arose because of the fact that the Junior employees were granted the benefit of Senior Scale/Selection Grade Pay by taking into account the ad hoc services that they had rendered in the past – Hence, Rule 21 became inapplicable in the present case – Stepping up of pay in the present case would go against the principle of equity as the benefit cannot be given to those who were not even born in the cadre, for claiming benefits for the service that they have not actually rendered. [Paras 31, 32, 33]

Case Law Cited

Union of India v. R. Swaminathan [1997] Supp. 4 SCR 94 : (1997) 7 SCC 690; Union of India v. M. Suryanarayana Rao [1998] 3 SCR 1060 : (1998) 6 SCC 400 – relied on.

Union of India & Ors. v. C.R. Madhava Murthy & Anr. [2022] 3 SCR 22 : (2022) 6 SCC 183; Ashok Ram Parhad & Ors. v. State of Maharashtra & Ors. [2023] 2 SCR 900 : (2023) SCC Online 265; Gurcharan Singh Grewal v. Punjab SEB (2009) 3 SCC 94 – distinguished.

Union of India v. Sushil Kumar Paul (1998) 5 SCC 268; ESI Corporation v. P.K. Srinivasmurthy (1997) 11 SCC 533 – referred to.

List of Acts

Gujarat Civil Services (Pay) Rules, 2002.

List of Keywords

Service Law; Stepping up of pay.

Case Arising From

CIVIL APPELLATE JURISDICTIONL: Civil Appeal No.9059 of 2024

From the Judgment and Order dated 28.12.2017 of the High Court of Gujarat at Ahmedabad in LPA No.1311 of 2017

With

Civil Appeal Nos. 9060, 9061, 9062-9081, 9082-9101, 9102-9121, 9122-9152 and 9153-9167 of 2024

Appearances for Parties

Shyam Divan, Sr. Adv., Ms. Charu Mathur, Nachiketa Joshi, Ms. Sucheta Joshi, Ms. Himadri Haksar, Narayan Dev Parashar, Ms. Karishma Rajput, Advs. for the Appellants.

Kanu Agarwal, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Madhav S, Ms. Deepanwita Priyanka, Kanu Agrawal, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Vikram Nath, J.

1.Leave granted.

2.These appeals assail the common impugned order dated 28.12.2017 passed by the Division Bench of the High Court of Gujarat in LPA No. 765/2017 in Special Civil Application No. 3210/2016 along with other allied appeals. The LPA was preferred by the respondent State of Gujarat against the order of Single Judge dated 19.04.2017 directing the State of Gujarat to remove the anomaly in the pay of the appellants Petitioners qua their juniors by stepping up their pay. The Division Bench allowed the LPA by the State and set aside the Single Judge’s order.

FACTUAL MATRIX –

3.The matters pertain to the issue whether or not the principle of stepping up of pay of an employee on the basis of the pay of his junior, is applicable in the present case, where the appellants are put on a lesser pay scale than the Assistant Professors who were appointed before them as ad hoc lecturers and subsequently regularized. The genesis of controversy goes back to the period of 1984-95 when 111 persons came to be engaged as Lecturers on ad hoc basis in various Government Colleges. The University Grants Commission1 has framed the Regulations of 1998, inter alia, providing for minimum length of service of four years for lecturers (Assistant Professor) with PhD and M. Phil and of six years for others to be eligible to move to Senior Scale (i.e., 10000-325-15200) and on completion of another five years of service, for being eligible to move to Selection Grade (i.e., 12000-420-18300). The said regulations also provided for counting of services during ad hoc period for grant of Senior Scale and Selection Grade Pay.

4.In view of the above regulations, the Education Department, issued a Government Resolution dated 17.06.1999 for considering previous services rendered by the ad hoc lecturers for the purpose of their placement in Senior Scale/Selection Grade. Subsequent to the said Resolution, the Government provided benefits to some of the ad hoc lecturers subject to conditions as provided therein. In 2001, some other ad hoc lecturers [1984-95 Group] approached the High Court for regularization of their services. However, the said Special Civil Application was dismissed against which LPA No. 485 of 2002 was preferred.

5.In the year 2001 itself, the appellants in the instant case came to be directly selected and appointed as Assistant Professors by the Gujarat Public Service Commission.2

6.On 15.11.2002, the State Government framed the Gujarat Civil Services (Pay) Rules, 20023 wherein Rule 21 provides for stepping up of a pay of Government Employee on the basis of the pay of his junior, while categorically stipulating that the provision of the said Rule will apply where the pay of a junior is fixed higher than his senior on his promotion to the higher cadre.

7.Alongside, in LPA No. 485 of 2002 preferred by the ad hoc lecturers for regularization, the Division Bench of the High Court in its order dated 11.12.2002 held that the services of the ad hoc lecturers cannot be regularized contrary to the Recruitment Rules in the post for which direct recruits were already selected through GPSC, but in the facts and circumstances of the case, directed the ad hoc lecturers to be treated as a separate class in view of their ad hoc continuance for nearly a decade and be considered for absorption in such posts as may be available with the government. Accordingly, rest of the ad hoc Assistant Professors came to be selected through GPSC and appointed as regular Assistant Professors in addition to the ad hoc lecturers who were already appointed as regular Assistant Professors in 2001.

8.Further, the ad hoc lecturers who were appointed as regular Assistant Professors in 2001 approached the High Court by way of Special Civil Application No. 6597 of 2007 and other connected matters seeking the relief of counting ad hoc services for the purpose of senior scale/selection grade. The High Court disposed of the said matters by directing the State Authorities to decide their representation. The State Government, vide its letter dated 29.03.2008, rejected their claim for counting ad hoc services for the purpose of grant of senior scale/selection grade on the ground that their initial appointment was without the requisite permission of GPSC.

9.In 2009, the Assistant Professors who got selected through direct appointment were extended the benefit of senior scale/selection grade effective from their date of selection through GPSC.

10.On 30.06.2010, UGC framed Regulations of 2010 treating Career Advancement Scheme as an avenue for promotion. It may be noted here that ad hoc services were eligible to be counted for different recruitments/promotion under Career Advancement Scheme.

11.The Government vide its resolution dated 03.08.2011 allowed the ad hoc services of 111 Professors [1984-95 Group] to be counted for the purpose of pay, leave and pension. Subsequently, a letter dated 27.09.2011 was written by the Joint Secretary, Education Department to the Commissioner, Higher Education, clarifying that the benefit of Resolution dated 03.08.2011 would not be extended for the purpose of seniority.

12.Consequently, the State Government, while referring to its earlier Government Resolution dated 17.06.1999 and the Government Resolution dated 02.08.2011, issued the Government Resolution dated 22.12.2014 for counting the previous services rendered by the erstwhile ad hoc lecturers for extending the benefits of Senior Scale/Selection Grade to the eligible Assistant Professors out of the total erstwhile ad hoc lecturers [1984-95 Group].

13.Accordingly, the State Government issued an Order dated 10.08.2015 granting the benefit of Senior Scale and Selection Grade to 85 eligible Assistant Professors by considering their previous ad hoc services. It so happened that by counting such ad hoc services rendered by such lecturers [1984-95 Group], all of them were getting higher pay than the direct appointees selected by GPSC. Aggrieved by this, a representation dated 19.10.2015 was submitted to the Government by the direct appointees to step up their pay in accordance with Rule 21 of the 2002 Pay Rules. It also gave rise to filing of petitions before the Single Judge of the High Court for appropriate writ, direction and order to remove the anomaly in their pay resulting from the office order dated 10.08.2015 and grant stepping up their pay on the basis of Rule 21. It is also to be noted here that the State Government, vide Resolution dated 06.03.2017, clarified that the Career Advancement Scheme is not related to promotion and deleted the terms “promotion” occurring in resolutions dated 18.04.2016 and 03.08.2016.

14.The Single Judge of the High Court, vide judgment dated 19.04.2017, held that Rule 21 is applicable in the present case based on the finding that the grant of Senior Scale and Selection Grade under the Career Advancement Scheme can be said to be promotion and therefore, when at the time of grant of Senior Scale and Selection Grade under the Career Advancement Scheme, there is anomaly in the pay scale between the Senior and Junior. It, accordingly, granted the benefit of stepping up, holding that the seniors (original Petitioners) are entitled to pay at par with their junior who were selected and appointed subsequent to them.

15.The Single Judge also specifically observed that the original petitioners have not challenged the Government Resolutions dated 03.08.2011 and 22.12.2014 and the office order dated 10.08.2015, or the action of the Respondents in granting the Senior Scale and Selection Grade to the said junior lectures by counting their past seniority rendered as ad hoc. Therefore, the Court chose to refrain itself from expressing any opinion on the validity of the said Government Resolutions. The Single Judge also noted that the subsequent appointees appear to have been treated as a separate class by the State for the purpose of considering their past ad hoc services as permissible under the UGC Regulations and such classification is not discriminatory, thus the ground of equal pay for equal work taken by the Petitioners therein would not stand. However, by granting the benefit of Rule 21, the State was directed to step up the pay of the original Petitioners.

16.Feeling aggrieved by the judgment of the Single Judge, original Respondents-State and others preferred Letters Patent Appeals before the Division Bench of the High Court.

17.It was held by the Division Bench of the High Court that in the peculiar facts and circumstances of the case, Rule 21 of the 2002 Pay Rules shall not be applicable at all since it applies only where the anomaly so caused must be the direct result of the application of Rule 21. The Court proceeded on the footing that grant of Senior Scale and Selection Grade under the Career Advancement Scheme can be said to be promotion. It was observed that if the case on behalf of the original petitioners is accepted and their pay is fixed at par with all those 85 Assistant Professors who as such rendered their services as ad hoc lecturers, in that case, all the original petitioners, who admittedly never rendered their services as ad hoc lecturers like all those 85 lecturers and who for the first time joined their services in 2001, will be granted the benefit of the earlier years during which they never rendered their services as ad hoc or otherwise and/or when they were not even born in the cadre.

18.The Division Bench also noted that though it is the specific case on behalf of the original Petitioners that counting the earlier services of 85 Assistant Professors as ad hoc is absolutely illegal, still the very Petitioners are asking the same pay which all those 85 Assistant Professors are getting by counting their earlier ad hoc services, meaning thereby, it can be said that the original Petitioners pray that they may also be granted the benefit of such illegality. There cannot be negative discrimination. Accordingly, it was held that the Single Judge had materially erred in granting the benefit of stepping up under Rule 21. The Division Bench allowed the appeals preferred by the State and set aside the order passed by the Single Judge.

19.Aggrieved by the said order, the original writ Petitioners are in appeals before us. We have heard Mr. Shyam Divan, learned senior counsel appearing for the appellants and Mr. Kanu Agarwal and Ms. Swati Ghildiyal, learned counsels appearing for the respondents.

ARGUMENTS ADVANCED –

20.Appellants have submitted that it is an undeniable fact that the subsequent appointees are junior to the Petitioners. The appellants who are seniors are seeking pay parity with the junior members of the cadre. That the instant case fulfils the requisite conditions for invoking Rule 21 of the 2002 Pay Rules as the said rule does not contemplate such anomalous situation where the junior is paid more salary than the senior. It was argued that the provisions of Rule 21 are applicable in the fact-situation of the present case in view of: -

a.Junior and senior government employees belong to one and same cadre;

b.Time-scale of pay of the lower post held by the junior and senior is identical; and,

c.Time-scale of the higher-post to which the government employee is promoted, is identical.

21.It is also submitted by the appellants that the State Government has resolved that Career Advancement Scheme is in the nature of promotion as indicated in the UGC guideline. Thus, Rule 21 is applicable and if the junior to the appellants have been granted the benefit of Career Advancement Scheme, the appellants who are senior to them, are entitled to the salary that they draw when the appellants are granted the benefit of Career Advancement Scheme.

22.Further, at one point, it is also argued by some of the appellants that the change from ad hoc to regular employees should be treated as break in service and service rendered as ad hoc ought not to be considered at the time of calculating total length of service. The Respondents, by passing the aforementioned resolutions, have led to the present anomaly.

23.Appellants also argued that if juniors get higher pay than the seniors, and the seniors have no promotional avenue, their seniority becomes insignificant. In that case, the very purpose of making regular appointment through GPSC after following the due recruitment process would be frustrated and this could have demoralizing effect on the working of seniors. It is to avoid such situation that their pay deserves to be stepped up to the pay equal to their juniors.

24.Lastly, appellants relied on the following judgments to supplement weight to their arguments:

i) Union of India & Ors. v. C.R. Madhava Murthy & Anr.,4

ii) Ashok Ram Parhad & Ors. v. State of Maharashtra & Ors.,5

iii)Gurcharan Singh Grewal v. Punjab SEB6

25.On the other hand, Respondents submitted that they are not disputing the fact that the appellants are senior to the ad hoc appointees [1984-95 Group] and the same position has also been accepted by the Single Bench as well as Division Bench of the High Court. It is submitted that despite the ad hoc appointees being juniors, Rule 21 is not applicable in the present case since the conditions stated in the said rule have not been fulfilled in the present case as the anomaly in pay is not a direct result of the application of the rule. That Clause (v) of Sub-rule (1) of Rule 21 clearly contemplates that if even in the lower post the junior Government employee draws from time to time the higher rate of pay than the senior by virtue of fixation of the pay under the normal rule or by grant of advance increments for any reasons, the same shall not be applicable to step up the pay of the senior Government employees.

26.Further, it was submitted that if the argument of the appellants that Rule 21 is applicable and consequently, their pay should be stepped up, is to be accepted, it would amount to giving benefit to the Petitioners and others of the earlier years, during which admittedly they were not even born in the cadre and not even serving, unlike the 1984-95 Group.

27.The Respondents relied upon the following judgments to stress that in similar facts and circumstances, this Court has held that rule of stepping up shall not be applicable:

i) Union of India v. R. Swaminathan,7

ii) Union of India v. M. Suryanarayana Rao,8

iii)Union of India v. Sushil Kumar Paul,9

iv)ESI Corporation v. P.K. Srinivasmurthy,10

ISSUE AT HAND –

28.It is not in dispute that the appellants have not challenged the Resolutions dated 22.12.2014 and 10.08.2015, nor have they made 85 Assistant Professors [1984-95 Group] as party to the present proceedings. Therefore, it is clear that it is not the case of the appellants that the said 85 Assistant Professors have been wrongly granted the benefit, through the said resolutions. It is also not the case of the appellants that the said 85 Assistant Professors were not eligible for getting the said benefits.

29.Further, it is also an admitted fact that the appellants are seniors to the 1984-95 Group and is not under dispute. Moreover, even though the Government, vide resolution dated 06.03.2017, has clarified that the Career Advancement Scheme is not related to promotion and therefore deleted the terms “promotions” occurring in resolutions dated 18.04.2016 and 03.08.2016, the High Court had proceeded on the footing that the grant of Senior Scale and Selection Grade under the Career Advancement Scheme can be said to be promotion to elucidate that such an argument would not help the case of the Petitioners. So, considering that the said resolutions of the Government are not under challenge in the instant case, we will also deal with the relevant issue at hand presuming that even if the Career Advancement Scheme is considered to be promotion.

30.The short question that requires determination in the present case boils down to whether Rule 21 of the 2002 Pay Rules would be applicable in the facts and circumstances of the present case or not. Rule 21 is quoted as under:

“21. Stepping up of a pay of a Government employee on the basis of the pay of his junior:

(1) Where on regulating initial pay of a Government employee under above rules-11, 13, 15 to 17 & 19 or on his appointment to a higher post if his pay is fixed at a lower rate of pay in that cadre than another Government employee junior to him in the lower grade but promoted or appointed subsequently in such another identical cadre; the pay of the senior Government employee on the higher post shall be stepped up to the figure equal to the pay as fixed for the junior Government employee in that higher post with effect from the date of promotion of the junior Government employee and it shall be subject to the following conditions viz:-

i. both, the junior and the senior Government employees belong to one and the same cadre and the posts to which they have been promoted or appointed, shall be identical and in the same cadre and in the same line of promotion;

ii. the time-scales of pay of the lower posts held by the senior and the junior Government employees shall be identical;

iii. the time scales of the higher posts to which the Government employees are promoted or appointed shall be identical;

iv. the senior Government employee had he not been appointed to the higher post earlier than his junior, he would have been eligible to draw pay at a stage not lower than that admissible to his junior in the lower post immediately prior to the appointment of the junior Government employee to the higher post;

v. the anomaly so caused must be the direct result of the application of this rule. For example, if even in the lower post the junior Government employee draws from time to time a higher rate of pay than the senior by virtue of fixation of pay under the normal rules or by grant of advance increment(s) for any reason, these provisions shall not be applicable to step up the pay of the senior Government employee.

vi. the pay of the senior Government employee so increased due to stepping up of pay shall not be reduced on reversion of the junior Government employee nor shall it be increased again with reference to the pay of the same officer.

(2) After the re-fixation of pay of the senior Government employee with reference to the pay of his junior, the next increment shall occur to him only after he has rendered the qualifying service which is necessary for drawing such increment from the stage at which his pay had been refixed.”

ANALYSIS –

31.A bare reading of the above provision makes it clear that a strict compliance of the said rule is necessary. The Rule of stepping up shall apply only if the conditions specified therein are fulfilled. Specifically, condition no. (v) of Rule 21 stipulates that the anomaly must be the direct result of the application of this rule. It further states by way of an example that, if even in the lower post the junior Government employee draws from time to time the higher rate of pay than the senior by way of fixation of the pay under the normal rule or by grant of advance increments for any reasons, the same shall not be applicable to step up the pay of the senior Government employee.

32.It is to be noted that in the present case, the anomaly in pay is not a direct result of Rule 21. Rather, the alleged anomaly arose because the 85 Assistant Professors [1984-95 Group] have been granted the benefit of Senior Scale/Selection Grade Pay by taking into account the ad hoc services that they have rendered in the past. Therefore, Rule 21 becomes inapplicable in the present case.

33.Moreover, if the present appeals are allowed, then it would amount to giving benefit to the appellants and others of the earlier years, during which admittedly they were not even born in the cadre and not even serving. This would go against the principle of equity. Such a benefit cannot be claimed by the Petitioners for the years of service that they have not actually rendered.

34.The case laws cited by the Appellants are not applicable to the instant case as they are distinguishable on facts. More specifically, Madhava Murthy (supra), it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. However, the said junior had not rendered any ad hoc services, which is not quite the case at hand. Similarly, Gurcharan Singh Grewal (supra) was also not a case involving ad hoc services. It was a matter wherein the Appellant was merely seeking to step up his pay as was done for another appellant situated similarly. Lastly, in Ashok Ram Parhad (supra), the grant of monetary benefit was not under contention. Rather, that matter was with regards to the inter se seniority which is not a point of dispute in the instant case. Hence, none of the case laws relied on by the Appellants help their case.

35.It is also befitting here to briefly refer to the relevant judgments by this Court rendered earlier on the subject-matter, which have been relied by the Respondents:

36.The case of R. Swaminathan (supra) is a matter with very similar factual matrix wherein certain employees claiming seniority were claiming step up if their juniors are getting more pay on account of their ad hoc services being counted. Certain junior employees had officiated on a promotional post on an ad hoc basis due to administrative exigencies., due to which their pay on their regular promotion was fixed higher than their senior. The Court held as under:

“10. According to the aggrieved employees, this has resulted in an anomaly, Government Order bearing No. F.2(78)-E.III(A)/66 dated 4-2-1966 has been issued for removal of anomaly by stepping up of pay of a senior on promotion drawing less pay than his junior. It provides as follows:

“10. Removal of anomaly by stepping up of pay of senior on promotion drawing less pay than his junior.—(a) As a result of application of FR 22-C.—In order to remove the anomaly of a government servant promoted or appointed to a higher post on or after 1-4-1961 drawing a lower rate of pay in that post than another government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided that in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:

(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;

(b) the scale of pay of the lower and higher posts in which they are entitled to draw pay should be identical;

(c) the anomaly should be directly as a result of the application of FR 22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer.

The orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under FR 27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.”

As the Order itself states, the stepping up is subject to three conditions: (1) Both the junior and the senior officers should belong to the same cadre and the posts in which they have been promoted should be identical and in the same cadre; (2) the scales of pay of the lower and higher posts should be identical; and (3) anomaly should be directly as a result of the application of Fundamental Rule 22-C which is now Fundamental Rule 22(I)(a)(1). We are concerned with the last condition. The difference in the pay of a junior and a senior in the cases before us is not as a result of the application of Fundamental Rule 22(I)(a)(1). The higher pay received by a junior is on account of his earlier officiation in the higher post because of local officiating promotions which he got in the past. Because of the proviso to Rule 22 he may have earned increments in the higher pay scale of the post to which he is promoted on account of his past service and also his previous pay in the promotional post has been taken into account in fixing his pay on promotion. It is these two factors which have increased the pay of the juniors. This cannot be considered as an anomaly requiring the stepping up of the pay of the seniors.

11. The Office Memorandum dated 4-11-1993, Government of India, Department of Personnel and Training, has set out various instances where stepping up of pay cannot be done. It gives, inter alia, the following instances which have come to the notice of the Department with a request for stepping up of pay. These are:

“(a) Where a senior proceeds on Extraordinary Leave which results in postponement of date of next increment in the lower post, consequently he starts drawing less pay than his junior in the lower grade itself. He, therefore, cannot claim pay parity on promotion even though he may have been promoted earlier to the higher grade:

(b) If a senior foregoes/refuses promotion leading to his junior being promoted/appointed to the higher post earlier, the junior draws higher pay than the senior. The senior may be on deputation while the junior avails of the ad hoc promotion in the cadre. The increased pay drawn by a junior either due to ad hoc officiating/regular service rendered in the higher posts for periods earlier than the senior, cannot, therefore, be an anomaly in strict sense of the term.

(c) If a senior joins the higher post later than the junior for whatsoever reasons, whereby he draws less pay than the junior, in such cases the senior cannot claim stepping up of pay on a par with the junior.

(d) ***”

There are also other instances cited in the Memorandum. The Memorandum makes it clear that in such instances a junior drawing more pay than his senior will not constitute an anomaly and, therefore, stepping up of pay will not be admissible. The increased pay drawn by a junior because of ad hoc officiating or regular service rendered by him in the higher post for periods earlier than the senior is not an anomaly because pay does not depend on seniority alone nor is seniority alone a criterion for stepping up of pay.

13. The employees in question are, therefore, not entitled to have their pay stepped up under the said Government Order because the difference in the pay drawn by them and the higher pay drawn by their juniors is not as a result of any anomaly; nor is it a result of the application of Fundamental Rule 22(I)(a)(1).”

37.Similarly, in the case of Suryanarayana Rao (supra), the Respondent was promoted and he was senior to two other persons, yet his pay was fixed at a lesser scale whereas the pay of the said two persons was fixed on a higher scale for the reason that the said juniors were promoted earlier to the promotional posts on an ad hoc basis. The Court had relied on the ratio laid down in R. Swaminathan (supra) and refused to grant the relief of stepping up.

CONCLUSION –

38.In light of the facts and circumstances of the case(s), the discussion laid out above surrounding Rule 21 and a perusal of the authorities elucidated above, we do not find any merit in the contentions of the appellants.

39.We, thus, hold that Rule 21 of the 2002 Pay Rules is inapplicable in the instant case(s) and no relief can be granted to the appellants. The present appeals deserve to be dismissed. It is ordered accordingly.

40.Pending applications (if any) are disposed of.

Result of the case: Appeal dismissed.

1 UGC, hereinafter

2 GPSC, hereinafter

3 2002 Pay Rules, hereinafter

4 [2022] 3 SCR 22 : (2002) 6 SCC 183

5 [2023] 2 SCR 900 : (2023) SCC Online SC 265

6 (2009) 3 SCC 94

7 [1997] Supp. 4 SCR 94 : (1997) 7 SCC 690

8 [1998] 3 SCR 1060 : (1998) 6 SCC 400

9 (1998) 5 SCC 268

10 (1997) 11 SCC 533

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Judicial discipline – Principles of – Detention orders u/s. 3 of COFEPOSA against the detenue and three co-accused persons for the alleged seizure of contraband gold and arrested thereafter – Division Bench of the High Court dismissed the Writ Petition filed by the detenue’s sister-in-law challenging the detention order as well as the confirmation of detention on the ground of non-supply of relevant documents and thus, sought release of the detenue, when the coordinate Bench of the same High Court had allowed the writ petitions filed by the co-accused persons challenging the same detention order holding that documents sought had been relied upon in the detention orders and the same ought to have been furnished to the detenus when they requested for the same, thus, the non-supply had vitally affected the right of the detenus and the detention order was bad – Correctness: Held: Division Bench of the High Court while passing the impugned judgment and order should have followed the view taken by another Division Bench of the same High Court specifically when the grounds of detention and the grounds of challenge were identical in both the cases – In the event, the Division Bench of the High Court was of the view that the earlier decision of the Coordinate Bench of the same High Court was not correct in law, the only option available to it was to refer the matter to a larger Bench – Division Bench of the High Court in the while rejecting the case of the detenue, observed that the detaining authority had arrived at a subjective satisfaction on the basis of various documents and that non-supply of the WhatsApp chats would not vitiate the detention order, thus, held that the findings of the Coordinate Bench of the same High Court in the cases of the co-accused could not be followed in the instant case – When the Coordinate Bench of the same High Court based on same grounds of detention and on the basis of the same material, which was relied on by the detaining authority, had come to a considered conclusion that non-supply of certain documents had vitiated the right to make an effective representation of the detenus, another Coordinate Bench could not have ignored the same – Second Division Bench has sought to justify its decision by holding that the findings in the cases of co-accused and other connected matters would not be applicable to it since the detaining authority had also taken into consideration the other material while arriving at its subjective satisfaction – However, it is to be noted that if that was so in the case of present detenue, that was also so in the cases of other detenus – Thus, the detention order as also order of confirmation of detention order quashed and set aside – Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974. [Paras 12, 15-18]

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[2024] 8 S.C.R. 460 : 2024 INSC 612

Shabna Abdulla v. The Union of India & Ors.

(Criminal Appeal No. 3082 of 2024)

20 August 2024

[B.R. Gavai,* Prashant Kumar Mishra and K.V. Viswanathan, JJ.]

Issue for Consideration

Matter pertains to the correctness of the order passed by the Division Bench of the High Court dismissing the writ petition filed by the detenue’s sister-in-law challenging the detention order as well as the confirmation of detention on the ground of non-supply of relevant documents and thus, sought release of the detenue, when the coordinate Bench of the same High Court had allowed the writ petitions filed by the co-accused persons challenging the same detention order holding that documents relied upon in the detention orders ought to have been furnished to the detenus when they requested for the same, thus, the non-supply had vitally affected the right of the detenus and detention order was bad.

Headnotes

Judicial discipline – Principles of – Detention orders u/s. 3 of COFEPOSA against the detenue and three co-accused persons for the alleged seizure of contraband gold and arrested thereafter – Division Bench of the High Court dismissed the Writ Petition filed by the detenue’s sister-in-law challenging the detention order as well as the confirmation of detention on the ground of non-supply of relevant documents and thus, sought release of the detenue, when the coordinate Bench of the same High Court had allowed the writ petitions filed by the co-accused persons challenging the same detention order holding that documents sought had been relied upon in the detention orders and the same ought to have been furnished to the detenus when they requested for the same, thus, the non-supply had vitally affected the right of the detenus and the detention order was bad – Correctness:

Held: Division Bench of the High Court while passing the impugned judgment and order should have followed the view taken by another Division Bench of the same High Court specifically when the grounds of detention and the grounds of challenge were identical in both the cases – In the event, the Division Bench of the High Court was of the view that the earlier decision of the Coordinate Bench of the same High Court was not correct in law, the only option available to it was to refer the matter to a larger Bench – Division Bench of the High Court in the while rejecting the case of the detenue, observed that the detaining authority had arrived at a subjective satisfaction on the basis of various documents and that non-supply of the WhatsApp chats would not vitiate the detention order, thus, held that the findings of the Coordinate Bench of the same High Court in the cases of the co-accused could not be followed in the instant case – When the Coordinate Bench of the same High Court based on same grounds of detention and on the basis of the same material, which was relied on by the detaining authority, had come to a considered conclusion that non-supply of certain documents had vitiated the right to make an effective representation of the detenus, another Coordinate Bench could not have ignored the same – Second Division Bench has sought to justify its decision by holding that the findings in the cases of co-accused and other connected matters would not be applicable to it since the detaining authority had also taken into consideration the other material while arriving at its subjective satisfaction – However, it is to be noted that if that was so in the case of present detenue, that was also so in the cases of other detenus – Thus, the detention order as also order of confirmation of detention order quashed and set aside – Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974. [Paras 12, 15-18]

Case Law Cited

Official Liquidator v. Dayanand and Others [2008] 15 SCR 331 : (2008) 10 SCC 1; Nushath Koyamu v. Union of India and Others [2022 (3) KLT 885] – referred to.

List of Acts

Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974; Constitution of India.

List of Keywords

Detention order; Confirmation of detention order; Non-supply of relevant documents; Release of detenue; Coordinate Bench of the High Court; Seizure of contraband gold; Reference to larger Bench; Copies of the WhatsApp chats.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3082 of 2024

From the Judgment and Order dated 24.01.2023 of the High Court of Kerala at Ernakulam in WPCRL No.596 of 2022

Appearances for Parties

Raghenth Basant, Sr. Adv., Ms. Aanchal Tikmani, Ms. Kaushitaki Sharma, Advs. for the Appellant.

Nachiketa Joshi, Mukesh Kumar Maroria, Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

B.R. Gavai, J.

1.The present appeal challenges the final judgment and order dated 24th January 2023 in Writ Petition (Crl.) No. 596 of 2022, passed by a Division Bench of the High Court of Kerala, whereby the High Court dismissed the petition filed by the appellant, who is the sister-in-law of the detenue, and thereby upheld the detention order dated 24th August, 2021 issued against the detenue (one Abdul Raoof) under Section 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as, “COFEPOSA”) and its confirmation vide order dated 24th May, 2022.

2.The facts, in brief, giving rise to the present appeal are as given below.

2.1On 20th April, 2021, the unaccompanied baggage of one Althaf Moosan Mukri was checked and inside the compressor of a refrigerator amongst the baggage, contraband gold weighing 14,763.30 grams valued at Rs. 7,16,16,768/- was found and seized.

2.2Statements of co-accused persons were recorded, whereby they admitted that the detenue who was residing in Dubai, UAE, was running a cargo handling and forwarding business and was scouting passengers who had unaccompanied cargo to be sent to India. It was stated that the detenue would send contraband gold concealed in compressors of refrigerators along with unaccompanied baggage.

2.3On 24th August, 2021, detention orders under Section 3 of COFEPOSA were issued against the three co-accused persons namely Mohammad Ali (father-in-law of detenue), Abdulla S.S. (brother-in-law of detenue) and Biju V. Joy (Customs G Cardholder) and they were arrested. They later challenged their respective detention orders by way of separate Writ Petitions filed before the High Court of Kerala.

2.4On 27th December, 2021, the detenue reached India. He repeatedly wrote letters/issued reminders to the Director General (DG), Central Economic Intelligence Bureau (hereinafter, “CEIB”) as well as the Joint Secretary, COFEPOSA, stating that he has not received any information of a detention order issued against him.

2.5On 5th March, 2022, the detenue was arrested and he was served with the detention order dated 24th August, 2021. He was supplied the grounds of detention on 7th March, 2022. Thereafter, by an order dated 24th March, 2022, the case of the detenue was referred by the CEIB to the Advisory Board under Section 8(b) of COFEPOSA Act.

2.6On 5th April, 2022, the detenue wrote letters to the DG, CEIB and Joint Secretary (COFEPOSA), seeking various documents that had not been provided to the detenue. He inter-alia sought audio recordings of the voice messages pertaining to the WhatsApp conversations relied upon by the Detaining Authority, as was evident from the grounds of detention. The Joint Secretary (COFEPOSA) rejected the request of the detenue, whereas the DG, CEIB kept the request pending for the Advisory Board to take an opinion on.

2.7On 24th May, 2022, in view of the opinion of the Advisory Board, the Central Government confirmed the detention order of the detenue for a period of one year from the date of detention.

2.8On 3rd June, 2022, a Division Bench of the High Court by a common judgement, allowed the three writ petitions filed by the co-accused persons being W.P. (Crl.) Nos. 107-109 of 2022. The High Court was of the opinion that documents sought had been relied upon in the detention orders and the same ought to have been furnished to the detenus when they requested for the same. It, accordingly, held that the non-supply had vitally affected the right of the detenus under Article 22(5) of the Constitution of India & therefore, the detention order was bad.

2.9On 29th June, 2022, the appellant filed a Writ Petition being W.P. (Crl.) No. 596 of 2022, challenging the detention order dated 24th August, 2021, as well as the confirmation of detention vide order dated 24th May, 2022, by the Central Government on the ground of non-supply of relevant documents and therefore sought release of the detenue.

2.10On 24th January, 2023, a Division Bench of the High Court (other than the one which adjudicated upon the writ petitions filed by the co-accused persons), dismissed the Writ Petition filed by the appellant. Aggrieved thereby, the present appeal arises.

3.We have heard Mr. Raghenth Basant, learned Senior Counsel appearing for the appellant and Mr. Nachiketa Joshi, learned Senior Counsel for the respondent(s).

4.Mr. Raghenth Basant, learned Senior Counsel, submitted that the Division Bench of the High Court while dismissing the petition of the present appellant has failed to take into consideration the judgment and order dated 3rd June 2022 in the cases of Nushath Koyamu vs. Union of India and others1 and other connected matters delivered by a Coordinate Bench of the same High Court wherein it was held that the detention of the co-detenus was vitiated on account of non-supply of WhatsApp chats. He submits that the grounds of detention, insofar as the detenue in the present appeal is concerned, are identical with the grounds of detention with that of the co-detenue Mr. Biju V. Joy and two other detenus, whose detention was set aside by the order of the High Court dated 3rd June 2022. It is, therefore, submitted that the detention order is liable to be quashed on this short ground.

5.Mr. Nachiketa Joshi, learned counsel appearing on behalf of the Union of India, submits that the learned Division Bench of the High Court has rightly distinguished the decision of the Coordinate Bench of the same High Court in the cases of Nushath Koyamu (supra) and other connected matters. He, therefore, submitted that no inference with the impugned judgment and order is warranted.

6.The material placed on record would reveal that the grounds of detention insofar as the present detenue and Mr. Biju V. Joy and other two detenus, whose detention has been held to be illegal by the judgment and order 3rd June 2022 passed by the Coordinate Bench of the same High Court in the cases of Nushath Koyamu (supra) are almost identical.

7.It will be relevant to refer to the following ground of detention:

"1.Mr. Biju V. Joy, G card holder of M/s The Mercantile and Marine services was summoned on 03.08.2021 and his voluntary statement was recorded under Section 108 of Customs Act, 1962 wherein he, inter alia, reiterated that his previous statements dated 20.04.2021 and 28.04.2021 were true and correct. He further submitted printouts of WhatsApp chats between him and Mr. Abdul Raoof i.e. you containing the passport details of passenger Mr. Althaf Moosan Mukri and details of previous consignments which were cleared on behalf of Mr. Abdul Raoof i.e. you; that he signed on the printouts of same and confirmed that they were retrieved from his mobile phone.”

8.Undisputedly, the said WhatsApp chats refer to the detenue in the present appeal as well as said Biju V. Joy.

9.In the cases of Nushath Koyamu (supra) and other connected matters, the Coordinate Bench of the same High Court has recorded the submissions of the petitioner(s) therein with regard to non-supply of the WhatsApp chats. The same reads thus:

“15. The learned counsel for the petitioner submits that in W.P. (Crl) No. 107 of 2022, the detenue had filed Ext. P12 request for supply of the documents mentioned therein, particularly, a screen shot taken from the detenus phone which was relied upon by the detaining authority. It is mentioned in Ext. P12 that there were at least six voice messages visible on the screen shot which were relied on and those messages appear to be of 19th April 2021, a day before the detenus in this case were taken into custody by the DRI. It is the contention that from the screen shot, the contents of the whatsapp chat cannot be understood and unless the chats in electronic form is provided, an effective representation cannot be made. Thus, the whatsapp chat in electronic form which was to be given on a pen drive or such other media to facilitate them to hear them and understand the content and offer the explanation has been deprived offending the right under Article 22(5) of the Constitution of India.”

10.On recording of the said submissions, the Coordinate Division Bench of the same High Court observed thus:

“17. On a consideration of the rival submission on this aspect, we notice that there has been reliance made in the detention order regarding the documents mentioned above which might have forced the detaining authority to reach the conclusion about the previous smuggling activities and which necessitated the present order of detention. In spite of a specific request, as seen from Ext. P12 in the above cases, we find copies were not given. In as much as the contents of the above being relied upon and they have not been given despite asking for them, we feel there has been infraction of the right of the detenus to make an effective representation seeking release.

18. The learned counsel for the petitioner is right in stating that the detaining authority ought to have furnished the said materials as their right to make an effective representation has been impaired. It is relevant to note in the decision of the Supreme Court in Atma Ram Vaidya v. State of Bombay [AIR 1951 SC 157]. The Hon’ble Supreme Court held that:

Para 10. “To put, it in other words, the detaining authority has made its decision and passed its order. The detained person is then given an opportunity to urge his objections which in cases of preventive detention comes always at a later stage. The grounds may have been considered sufficient by the Government to pass its judgment. But to enable the detained person to make his representation against the order, further details may be furnished to him. In our opinion, this appears to be the true measure of the procedural rights of the detained person under Article 22 (5).”

Para 12. “The conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., materials on which the detention order was made. In our opinion, it is therefore clear that while there is a connection between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different. As already pointed out, for the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earliest opportunity”.

Para 13 “But when grounds which have a rational connection with the ends mentioned in section a of the Act are supplied, the first condition is satisfied. If the grounds are not sufficient to enable the detenue to make a representation, the detenue can rely on his second right and if he likes may ask for particulars which will enable him to make the representation. On an infringement of either of these two rights the detained person has a right to approach the court and complain that there has been an infringement of his fundamental right and even if the infringement of the second part of the right under Article 22 (5) is established he is bound to be released by the court”.

19. In the light of the above, we cannot accept the contention of the learned counsel for the respondents that there was no duty to supply the documents mentioned above to the detenus. The decisions relied on by the learned counsel for the respondent for the proposition that the documents sought for in the instant cases need not be granted cannot be accepted as the same are rendered on different sets of facts. In as much as the documents sought has been relied upon in the detention orders, the same ought to have been furnished to the detenus when they requested for the same. The learned counsel for the petitioners is also right in relying on the following judgments for canvassing the same position that the relevant electronic info to be provided in the same format:

1.2016 (3) KHC – Reshmi v. Union of India

2.2019 KHC 914 – Hajira N.K. v. Union of India

3.2020 KHC 167 – Beevikunju v. Union of India

4.2021 KHC 303 – Waheeda Ashraf v. Union of India

In the light of the discussion above, we are convinced that the non-supply has vitally affected the right of the detnus under Article 22(5) of the Constitution of India. We, accordingly, hold that the detention order is bad for the non-supply of these documents sought for in Ext. P12.”

11.After observing the aforesaid, the Coordinate Division Bench of the same High Court held that non-supply of the documents had vitally affected the right of the detenus to make an effective representation and the detention order came to be quashed on the said ground.

12.In the present case also, the detenue had sought the copies of the said WhatsApp chats. However, the Division Bench of the High Court in the present case, while rejecting the case of the detenue, observed that the detaining authority had arrived at a subjective satisfaction on the basis of various documents and that non-supply of the WhatsApp chats would not vitiate the detention order. It, therefore, held that the findings of the Coordinate Bench of the same High Court in the cases of Nushath Koyamu (supra) and other connected matters in respect of other detenus could not be followed in the present case.

13.We may gainfully refer to the following observations of this Court in the case of Official Liquidator vs. Dayanand and others2:

“90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.

91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.”

14.The aforesaid observations of this Court aptly apply to the facts of the present case.

15.When the Coordinate Bench of the same High Court based on same grounds of detention and on the basis of the same material, which was relied on by the detaining authority, had come to a considered conclusion that non-supply of certain documents had vitiated the right to make an effective representation of the detenus, another Coordinate Bench could not have ignored the same.

16.No doubt that, the second Division Bench has sought to justify its decision by holding that the findings in the cases of Nushath Koyamu (supra) and other connected matters would not be applicable to it since the detaining authority had also taken into consideration the other material while arriving at its subjective satisfaction. However, it is to be noted that if that was so in the case of present detenue, that was also so in the cases of other detenus.

17.We are of the considered opinion that the Division Bench of the High Court while passing the impugned judgment and order should have followed the view taken by another Division Bench of the same High Court specifically when the grounds of detention and the grounds of challenge were identical in both the cases. In the event, the Division Bench of the High Court was of the view that the earlier decision of the Coordinate Bench of the same High Court was not correct in law, the only option available to it was to refer the matter to a larger Bench.

18.In that view of the matter, the present appeal deserves to be allowed on this short ground. We accordingly pass the following order.

(i)The appeal is allowed.

(ii)Order of detention dated 24th August 2021 passed by the Central Economic Intelligence Bureau, COFEPOSA Wing is quashed and set aside.

(iii)Order of confirmation of detention order dated 24th May 2022 passed by the Central Economic Intelligence Bureau, COFEPOSA Wing is quashed and set aside.

Result of the case: Appeal allowed.

1 [2022 (3) KLT 885]

2 [2008] 15 SCR 331 : (2008) 10 SCC 1

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Custody – Claim of – Appellant-father, only surviving biological parent seeking custody of the minor daughter from the alleged unlawful custody of his sister-in-laws – Husband lost his wife just ten days after the birth of their daughter and thereafter, his father due to Covid-19 – Due to the loss, the father handed over the custody of his minor daughter to his sister-in-law as an interim arrangement, however, his son who was relatively older was with him – Subsequently, on his remarriage, he sought custody of his minor daughter, but was refused – Father filed petition under the 1890 Act, seeking custody of his minor daughter but the case was withdrawn – Father then filed habeas corpus petition seeking custody – High Court disposed of the petition granting liberty to the parties to approach the family court – Correctness: Held: In matters of the custody of minor children, the paramount welfare of the child is seen – There cannot be any straight-jacket formula – Also, no hard and fast rule can be laid down as regards the maintainability of the habeas corpus petition in the custody matters of minor child – Exercise of jurisdiction by the writ court u/Art. 226 or not would depend on the facts and circumstances of each case – Merely because of the unfortunate circumstances, sister-in-laws were given the temporary custody of the minor child to nurture the infant and only because they looked after her for few years, the same cannot be a ground to deny the custody of the minor child to the appellant-her only natural guardian – Subsequently, the appellant remarried – Now, he and his wife can very well look after the minor girl – Perusal of the photographs reveal that the minor child has gelled well with the family – Appellant is well educated and employed as Government Official in Delhi, having residence in Delhi whereas the sister-in-law to whom the custody of the child was handed over is residing at a remote village – Appellant apart from taking care of his children, can very well provide the best of the education facilities to his children – Child, who lost her mother at tender age, cannot be deprived of the company of her father and natural brother – Even in order to ensure the welfare of the minor child, she should live with her natural family – Minor child would get adapted to her natural family very well in a short period – Thus, impugned judgment and order of the High Court quashed and set aside – Sister-in-laws to handover the custody of the minor child, however, permitted to meet her at the residence of the appellant at the given time – Constitution of India – Guardians and Wards Act, 1890. [Paras 11-17]

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[2024] 8 S.C.R. 451 : 2024 INSC 610

Gautam Kumar Das v. NCT of Delhi and Others

(Criminal Appeal No. 3447 of 2024)

20 August 2024

[B.R. Gavai* and K.V. Viswanathan, JJ.]

Issue for Consideration

Matter pertains to the grant of custody of the minor child to the father, the only natural guardian.

Headnotes

Custody – Claim of – Appellant-father, only surviving biological parent seeking custody of the minor daughter from the alleged unlawful custody of his sister-in-laws – Husband lost his wife just ten days after the birth of their daughter and thereafter, his father due to Covid-19 – Due to the loss, the father handed over the custody of his minor daughter to his sister-in-law as an interim arrangement, however, his son who was relatively older was with him – Subsequently, on his remarriage, he sought custody of his minor daughter, but was refused – Father filed petition under the 1890 Act, seeking custody of his minor daughter but the case was withdrawn – Father then filed habeas corpus petition seeking custody – High Court disposed of the petition granting liberty to the parties to approach the family court – Correctness:

Held: In matters of the custody of minor children, the paramount welfare of the child is seen – There cannot be any straight-jacket formula – Also, no hard and fast rule can be laid down as regards the maintainability of the habeas corpus petition in the custody matters of minor child – Exercise of jurisdiction by the writ court u/Art. 226 or not would depend on the facts and circumstances of each case – Merely because of the unfortunate circumstances, sister-in-laws were given the temporary custody of the minor child to nurture the infant and only because they looked after her for few years, the same cannot be a ground to deny the custody of the minor child to the appellant-her only natural guardian – Subsequently, the appellant remarried – Now, he and his wife can very well look after the minor girl – Perusal of the photographs reveal that the minor child has gelled well with the family – Appellant is well educated and employed as Government Official in Delhi, having residence in Delhi whereas the sister-in-law to whom the custody of the child was handed over is residing at a remote village – Appellant apart from taking care of his children, can very well provide the best of the education facilities to his children – Child, who lost her mother at tender age, cannot be deprived of the company of her father and natural brother – Even in order to ensure the welfare of the minor child, she should live with her natural family – Minor child would get adapted to her natural family very well in a short period – Thus, impugned judgment and order of the High Court quashed and set aside – Sister-in-laws to handover the custody of the minor child, however, permitted to meet her at the residence of the appellant at the given time – Constitution of India – Guardians and Wards Act, 1890. [Paras 11-17]

Case Law Cited

Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others [2019] 7 SCR 335 : (2019) 7 SCC 42 – relied on.

Dr. (Mrs.) Veena Kapoor v. Shri Varinder Kumar Kapoor (1981) 3 SCC 92; Nirmala v. Kulwant Singh and Others (2024) SCC OnLine 758; Athar Hussain v. Syed Siraj Ahmed and Others [2010] 1 SCR 49 : (2010) 2 SCC 654 – referred to.

List of Acts

Guardians and Wards Act, 1890; Constitution of India.

List of Keywords

Grant of custody of the minor child to the father-only natural guardian; Custody; Unlawful custody; Covid-19; Maintainability of the habeas corpus petition in the matters of custody; Welfare of the minor child; Natural guardian; Visitation rights.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3447 of 2024

From the Judgment and Order dated 03.04.2024 of the High Court of Delhi at New Delhi in WPCRL No.416 of 2024

Appearances for Parties

Saurav Agrawal, Ashish Kumar Tiwari, Anurag Tiwari, Ajay Sharma, Sahib Patel, Advs. for the Appellant.

Hirein Sharma, Sudhir Mendiratta, Saurabh Goel, Aditya Saluja, Ms. Vanshika C, Ms. Disha Bhalla, Dhruv Rajpal, Ms. Harshita Sabharwal, Ms. Madhumita Bhattacharjee, Ms. Srija Choudhury, Anant, Ms. Sajal Bhardwaj, Mukesh Kumar Maroria, Nachiketa Joshi, Siddharth Sinha, Santosh Kumar, Aaditya Shankar Dixit, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

B.R. Gavai, J.

1.Leave granted.

2.The present appeal challenges the final judgment and order dated 3rd April 2024 passed by a Division Bench of the High Court of Delhi in Writ Petition (Crl.) No. 416 of 2024, whereby the High Court disposed of the petition filed by the appellant, seeking to obtain the custody of his minor daughter from the alleged unlawful custody of respondent Nos. 5 and 6 (sisters-in-law of the appellant), by granting liberty to the parties to approach the family court of competent jurisdiction for seeking custody of the child in question.

3.The facts, in brief, giving rise to the present appeal are as given below:

3.1On 27th January 2012, the appellant married one Ms. Subrata Das and out of the wedlock two children were born – the first child, Master Divyanshu Das, on 11th September 2013, and the second child, Ms./Baby Sugandha Das, on 20th April 2021.

3.2When their daughter was only 10 days old, the appellant unfortunately lost his wife on 30th April 2021, due to Covid-19 infection. Shortly thereafter tragedy struck the appellant once again as he lost his father on 13th May 2021, due to Covid-19 infection.

3.3Grieving the loss of his loved ones, the appellant, took help from respondent No. 5, who is his sister-in-law, in taking care of his children. The appellant handed over the custody of his children to his sister-in-law as an interim/stop-gap solution, to see through the difficult period that he was undergoing on account of loss of his wife and father.

3.4After some time, the custody of the minor son was given back to the appellant, but the custody of the minor daughter was sought to be kept by respondent No. 5 on the ground that the girl child was still quite young and would require the care and attention of a female for few more months. The custody of the minor daughter, as a result, continued to be with respondent No. 5.

3.5Respondent No. 5, thereafter, started refusing to let the appellant meet the minor daughter on one pretext or the other. She also took the minor daughter to her maternal home at Belda, West Bengal, where custody of the minor daughter was handed over to respondent No. 6.

3.6The appellant, in the meanwhile, married again in order to provide his children with the care and attention of a female. He again approached respondent No. 5 to get back the custody of his minor daughter, but the same was refused again.

3.7Aggrieved by the sequence of events, the appellant on 7th July 2023, filed a case under Section 10 of the Guardians and Wards Act, 1890, being Case No. GP/71/2023 seeking custody of his minor daughter. The appellant also filed two complaints, one in Delhi and the other one in Belda, West Bengal, but no action was taken on them.

3.8The appellant, thereafter, on 30th January 2024, filed a Writ Petition before the High Court of Delhi being W.P. (Crl.) No. 416 of 2024 seeking custody of his minor daughter from respondents Nos. 5 and 6.

3.9Pursuant to the order of the High Court dated 7th February 2024, the appellant withdrew his case under the Guardians and Wards Act. The Division Bench of the High Court, thereafter, interacted with the parties and referred the matter to mediation to find out a workable solution. Taking into consideration the report of the mediator, the Division Bench arrived at an interim arrangement for visitation rights. However, vide final judgment and order, the High Court disposed of the writ petition by granting liberty to the parties to approach the family court of competent jurisdiction.

3.10Aggrieved thereby, the appellant approached this Court. Vide order dated 16th April 2024, this Court issued notice and directed that the minor daughter shall remain in Delhi. Vide order dated 17th May 2024, this Court, on a prima facie consideration of the facts, was of the view that the appellant has valid grounds to claim the custody of his minor daughter. However, before arriving at a final conclusion, this Court thought it fit to give proper opportunity to the appellant to win over the love and affection of his minor daughter and accordingly gave visitation rights to the appellant, his second wife and his son. The interim arrangement arrived at by this Court has continued till today.

4.We have heard Shri Saurav Agrawal, learned counsel appearing on behalf of the appellant and Shri Hirein Sharma, learned counsel appearing on behalf of respondent Nos. 5 and 6.

5.Shri Agrawal, learned counsel appearing on behalf of the appellant submitted that the High Court has grossly erred in dismissing the petition. He submitted that the appellant is the only surviving biological parent of the minor daughter Sugandha Das. He submitted that the appellant is a natural guardian of the minor child Sugandha Das, whereas respondent Nos. 5 and 6 are neither the legal guardian nor have any legal right or authority over the minor girl Sugandha Das. He further submitted that the appellant, who is a natural guardian, cannot be made to run from pillar to post to seek custody of his own child. He submitted that the view taken by the High Court is contrary to the law laid down by this Court in the case of Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others.1

6.Shri Agrawal further submitted that it is also in the interest of the minor child Sugandha Das to stay with her father who is stationed in Delhi whereas respondent Nos. 5 and 6 are residing in a small village Belda in West Bengal. He submitted that the minor child Sugandha Das would also be deprived of the company of her biological brother.

7.Shri Agrawal, relying on various photographs, submitted that the minor child Sugandha Das has gelled well with the appellant, his son and his wife. The learned counsel therefore pressed for quashing and setting aside of the impugned order passed by the High Court with a direction to the respondents to immediately hand over the custody of the minor child Sugandha Das to the appellant.

8.Shri Sharma, learned counsel appearing on behalf of respondent Nos. 5 and 6 submitted that the appellant, having withdrawn the petition filed under the Guardian and Wards Act, 1890, could not have filed a habeas corpus petition before the High Court. It is submitted that the appellant and his family members were ill-treating Late Ms. Subrata Das, first wife of the appellant. It is submitted that it is the appellant who had handed over the custody of the minor child Sugandha Das voluntarily to respondent Nos. 5 and 6. In the written submissions, various other allegations have also been made by respondent Nos. 5 and 6 against the appellant. The learned counsel has relied on the judgments of this Court in the cases of Dr. (Mrs.) Veena Kapoor v. Shri Varinder Kumar Kapoor,2 Nirmala v. Kulwant Singh and Others3 and Athar Hussain v. Syed Siraj Ahmed and Others.4

9.Before we come to the facts of the present case, it would be apposite to refer to the observations of this Court in the case of Tejaswini Gaud (supra), wherein this Court was considering almost similar facts as have arisen in the present case. In the said case also, after the marriage, the wife was detected with breast cancer and the husband had fallen ill with Tuberculosis Meningitis and Pulmonary Tuberculosis. While the husband was undergoing treatment, one of the sisters of the wife and her husband took the minor child Shikha and her ailing mother to their residence at Mumbai. During the treatment, the wife succumbed to her illness. The minor child continued to be in the custody of the sister of the wife and her husband. Since the father was denied the custody of the minor child, he approached the High Court by way of writ petition seeking writ of habeas corpus. The High Court allowed the petition and directed the custody of the minor child to be handed over to the husband. Being aggrieved thereby, the sister of the wife and her husband approached this Court. Before this Court, an objection was taken to the very tenability of the petition of habeas corpus filed under Article 226 of the Constitution of India. Rejecting the said argument, this Court observed thus:

“21. In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent father is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 1½ years cannot express its intelligent preferences. Hence, in our considered view, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India.”

10.In the said case, after considering the earlier pronouncements, this Court further observed thus:

“34. As observed in Rosy Jacob [Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840] earlier, the father’s fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The welfare of the child shall include various factors like ethical upbringing, economic well being of the guardian, child’s ordinary comfort, contentment, health, education, etc. The child Shikha lost her mother when she was just fourteen months and is now being deprived from the love of her father for no valid reason. As pointed out by the High Court, the father is a highly educated person and is working in a reputed position. His economic condition is stable.

35. The welfare of the child has to be determined owing to the facts and circumstances of each case and the Court cannot take a pedantic approach. In the present case, the first respondent has neither abandoned the child nor has deprived the child of a right to his love and affection. The circumstances were such that due to illness of the parents, the appellants had to take care of the child for some time. Merely because, the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child. It is not the case of the appellants that the first respondent is unfit to take care of the child except contending that he has no female support to take care of the child. The first respondent is fully recovered from his illness and is now healthy and having the support of his mother and is able to take care of the child.”

11.Like the facts in the case of Tejaswini Gaud (supra), the facts in the present case are also peculiar. The appellant’s wife died due to COVID infection and as such, he was forced to give the custody of the minor child Sugandha Das to respondent Nos. 5 and 6, who are the sisters of the deceased wife. Looking at the very tender age of the child Sugandha Das at that time, the appellant could not have looked after her. However, the appellant was looking after his son Divyanshu Das, who was relatively older. Subsequently, the appellant remarried. Now, he and his wife can very well look after the minor girl Sugandha Das. A perusal of the photographs placed on record would also reveal that pursuant to the visitation rights granted by the High Court and this Court, the minor child has gelled well with the family and the family of four appears to be happy.

12.Insofar as the fitness of the appellant is concerned, he is well educated and currently employed as Assistant General Manager (Class A Officer) in Central Warehousing Corporation, Delhi. The appellant’s residence is also in Delhi whereas respondent No. 6 to whom the custody of the minor child was handed over to by respondent No. 5 is residing at a remote village in West Bengal. Apart from taking care of his children, the appellant can very well provide the best of the education facilities to his children. The child Sugandha Das, who lost her mother at tender age, cannot be deprived of the company of her father and natural brother. At the relevant time, the appellant had no other option but to look upon the sisters of his deceased wife to nurture his infant child.

13.In our opinion, merely because of the unfortunate circumstances faced by the appellant as a result of which, respondent Nos. 5 and 6 were given the temporary custody of the minor child Sugandha Das and only because they looked after her for few years, the same cannot be a ground to deny the custody of the minor child to the appellant, who is her only natural guardian.

14.Insofar as the allegations made against the appellant by respondent Nos. 5 and 6 are concerned, it appears that they have been made only as an afterthought, and especially after the appellant started asserting his claim for the custody of his minor daughter Sugandha Das. Insofar as the judgments of this Court on which respondent Nos. 5 and 6 have relied upon, we can only say that there cannot be any straight-jacket formula in the matters of custody.

15.Recently, this Court, in the case of Nirmala (supra) in paragraph 16 has also observed that no hard and fast rule can be laid down insofar as the maintainability of the habeas corpus petition in the matters of custody of minor child is concerned. It has been held that as to whether the writ court should exercise its jurisdiction under Article 226 of the Constitution of India or not will depend on the facts and circumstances of each case.

16.However, it is to be noted that a common thread in all the judgments concerning the custody of minor children is the paramount welfare of the child. As discussed hereinabove, we find that, apart from the appellant being the natural guardian, even in order to ensure the welfare of the minor child, she should live with her natural family. The minor child is of tender age, and she will get adapted to her natural family very well in a short period. We are therefore inclined to allow the appeal.

17.In the result, we pass the following order:

(i)The appeal is allowed;

(ii)The impugned judgment and order of the High Court is quashed and set aside;

(iii)Respondent Nos. 5 and 6 are directed to handover the custody of the minor child Sugandha Das forthwith; and

(iv)We, however, permit respondent Nos. 5 and 6 to meet the minor child Sugandha Das at the residence of the appellant every Wednesday between 04:00 pm and 06:00 pm.

18.Pending application(s), if any, shall stand disposed of.

Result of the case: Appeal allowed.

1 [2019] 7 SCR 335 : (2019) 7 SCC 42 : 2019 INSC 630

2 (1981) 3 SCC 92

3 2024 SCC OnLine 758 : 2024 INSC 370

4 [2010] 1 SCR 49 : (2010) 2 SCC 654 : 2010 INSC 7

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