Civil Appeal D.No.41636 of 2015              Sqn. Ldr. (Retd.) Navtej Singh vs. Union of India and ors.                                 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.11876-11877  OF 2018  (D.No.41636 OF 2015)

SQN. LDR. (RETD.) NAVTEJ SINGH ……Appellant

VERSUS

UNION OF INDIA AND ORS.                     ..…. Respondents

JUDGMENT

Uday Umesh Lalit, J.

1. Delay condoned.

2. These appeals under Section 30 read with Section 31(2) of the Armed

Forces Tribunal Act, 2007 (“The Act”, for short) are directed against (i)

judgment  and  order  dated  24.02.2015  in  O.A.  No.420/2013  and  (ii)

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judgment and order dated 03.07.2015 in Review Application No.19/2015 in

O.A. No.420/2013; passed by the Tribunal1.  

3. In aforesaid O.A. No.420/2013, the appellant had challenged the order

invalidating  him  from  service  on  medical  grounds  and  had  prayed  for

directions that he be promoted to the post of Wing Commander and that the

names  of  his  family  members  (wife  and  daughter)  be  recorded  in  the

service record and allow all benefits due to them.  However, while issuing

notice on 08.01.2016 the matter was limited by this Court to the question

whether “marriage of the petitioner with Meenu Sangha can be recognized

for  purposes  of  grant  of  post-retirement  benefits,  medical  facilities  and

family pension etc.”  Accordingly leave to appeal is granted under Section

31(2) of the Act in respect of the issue in question.

4. The  appellant  after  completing  training  from  Air  Force  Academy,

Hyderabad,  was granted  commission in  the rank of  Pilot  Officer  in  the

branch  of  Flying  Navigation  of  Indian  Air  Force  with  effect  from

1Armed Forces Tribunal, Principal Bench, New Delhi.

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16.12.1995.  Thereafter, he received promotions in due course of time and

was finally promoted to the rank of Squadron Leader.

5. Sometime in the year 2001 the appellant was diagnosed of Dysthemia

and Alcohol Dependence Syndrome and Primary Hypothyroidism and since

then was put in low medical category.   A Medical Board was constituted to

consider his medical condition and on 27.02.2009 the Medical Board found

him to be unfit for all flying duties.  The appellant was given the option of

being  transferred  to  the  Administrative  Branch  but  expressed  his

unwillingness.  In  the  circumstances,  Invaliding  Medical  Board  was

constituted  to  consider  the  case  which  declared  that  the  appellant  be

invalidated  out  of  service  on  medical  grounds.   The  aforesaid

recommendation of the Invaliding Medical  Board was approved and the

appellant was invalidated out of service with effect from 18.11.2009 in the

rank of Squadron Leader.

6. While  in  service,  on  27.10.2008  the  appellant  had  applied  to  the

Director,  Directorate  of  IMINT,  Air  Headquarters  (VB),  New  Delhi,

seeking permission to marry. It was stated as under:

“I  may  be  permitted  to  marry  Ms.  Meenu  Sangha  D/o.  Col. Jagjeet Singh (Retd.).  My fiancée is holding an Indian passport

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with  a  Canadian  immigrant  visa  and is  working with  Toronto Dominion  Canadian  Trust  bank.   The  bank  is  not supported/funded by the Canadian government.”

According to  the appellant,  he  was orally  allowed to proceed with

marriage and as such he contracted marriage on 19.12.2008.  

7. Air Force Order (AFO 14 of 2000) dated 09.06.2000 as amended from

time  to  time  dealt  with  the  subject  “Marriage  –  IAF  Personnel”  and

paragraphs  5  to  9)  of  this  order  dealt  with  “Marriage  with  Foreign

National”.  For the present purposes, Air Force order (AFO 04 of 2009)

dated 20.03.2009 was the relevant policy document when the issue arose

for consideration.   Paragraphs 2,7,8,9,10,11 and 16(c)  of  said Air  Force

Order dated 20.03.2009 are to the following effect:

“2. Prior permission of the competent authority is mandatory for  all  air-warriors  before contracting marriage as indicated in paras 3 to 9 below.  Application to marry can only be submitted if the age on the date of marriage is minimum 21 years (completed) for male and minimum 18 years (completed) for female.  The provisions of this AFO would apply for all cases of re-marriage.

… … …

7. Provisions regarding marriage with a foreign national are contained in Chapter V of IAP 3904.  Marriage with a foreign national is not to be contracted without the prior sanction of the

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AOP.  However, nationals of Bhutan will be deemed to be Indian nationals for this purpose.  

8. An air-warrior intending to marry a foreign national is to submit  an application as per  proforma given at  Appendix ‘C’. Application complete in all respects is to be forwarded through proper  channel,  so  as  to  reach  Air  HQ  (DPS)  at  least  three months before the proposed date of marriage.

9. Application for marriage with a foreign national is to be accompanied in all cases with the following:

(a) Three copies of recent passport size photo graph of the person with whom marriage is intended

(b) A separate application (in quadruplicate) seeking premature retirement  or  release from service on personal grounds.

(c) An undertaking from the air-warrior to the effect that  he  will  pay  the  training  cost,  if  his  or  her spouse  refuses  to  acquire  Indian  citizenship  or willfully delays acquisition of Indian citizenship.

(d) A written undertaking from the foreign national to the  effect  that  he/she  will  renounce  his/her original nationality and accept Indian citizenship as and when Indian citizenship Act 1955 permits him or her to do so.  This will be on an affidavit on a non-judicial stamp paper.

10. The formats of the PR application and the undertaking to be given by the air-warrior as well as the foreign national are given in Appendix ‘C’, ‘E’ & ‘F’ respectively to this Order.

11. If an air-warrior contracts marriage with a foreign national without  obtaining prior  permission of  the competent  authority, he/she would be liable for disciplinary action or administrative

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action for dismissal/removal/compulsory retirement from service, as considered appropriate by the competent authority.  Cases with sufficient  documentary  proof  of  such  violations  in  respect  of officers and warrant ranks are to be forwarded to Air HQ/Deptt of JAG (Air) after vetting by CJA at Comd HQ for initiation of disciplinary  administrative  action.   Command  HQ  may  take necessary  action  in  respect  of  airmen  of  the  rank  of  Sgt  and below [including NCs (E)].

… … …

16(c). Application for marriage with foreign nationals will also be processed as mentioned in sub-para (b) above.  As per para 1(i)  of  COI  letter  No.20(38)/2001/D(Coord)  dated  12th July, 2002,  “all  requests  of  the  members  of  the  Armed  Forces  for permission to marry a foreign national will have to be processed within 120 days.   If  such a request  is  not finalized within the period of  120 days,  the consent  will  be deemed to have been given.”  Therefore, such cases are to be given utmost importance and processed expeditiously within the stipulated timeframe.”

8. On 22.09.2009 the wife of the appellant had submitted an application

to relinquish Canadian Immigrant Status.  In November, 2010, the wife of

the appellant left her job and joined the appellant in India to look after the

appellant.   As the appellant  could not recover,  he moved to Canada for

further treatment.  While the couple was in Canada, they were blessed with

a  daughter  on  03.10.2011.   After  his  condition recovered,  the appellant

returned back to India  with his  wife and daughter.   On 12.06.2013, the

appellant  applied  to  the  Director,  Directorate  of  Air  Veteran,  Air

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Headquarters to include the names of his family members in the Certificate

of Service and issuance of ECHS cards.   According to the appellant, on

19.06.2013,  permission  was  granted  by  the  Joint  Director  to  issue  the

Certificate  as  prayed  for  but  the  permission  was  later  withdrawn  on

instructions of DPO, Air Headquarters on 16.07.2013.

9. In  these  circumstances,  the  appellant  filed  O.A.No.420/2013

submitting  that  his  medical  condition  was  attributable/aggravated  by

conditions  of  service  and  prayed  for  the  relief  and  directions  as  stated

above.

10. The respondents filed affidavit in opposition submitting inter alia as

under: “7. That the applicant applied for permission for marriage on 27 Oct 2008.  AFO 14/2000 and AFO 04/2009 lays down the QRs of marriage  with  foreign  nationals.   His  fiancée  was  holding  an Indian  passport  with  a  Canadian  immigration  visa  and  was working with Toronto Dominion Canadian Trust Bank.  Since the applicant had not submitted desired mandatory papers along with the application and the fiancée of the applicant was not fulfilling the  QRs  as  laid  down  by  AFO  04/09.   The  applicant  was informed to submit necessary documentary evidence before his said application could be processed.

8. That from the available records and a draft CoS submitted by the applicant,  it  is clear that on the day of Invalidment i.e.  18 Nov 09, the name of Ms. Meenu Sanga was not mentioned in the

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official records as wife in draft Certificate of Service, signed by him.  The name of his wife did not even appear in Certificate of Service (CoS) issued to him at the time of Invalidment.

9. That the applicant had informed the AF authorities on 15 Jan 2009 that he got married with Ms. Meenu Sanga on 19 Dec 2008.  As the applicant had not submitted requisite documents in time, his case for ex-post facto sanction for marriage with foreign national was not processed by the concerned directorate.”

11. The Tribunal did not accept the case that the medical condition of the

appellant was attributable to or was aggravated by conditions of service.  It

however  held  that  the  appellant  had  30%  disability  which  was  to  be

rounded off to 50% and consequently was entitled to disability pension @

50% with interest @ 12% per annum.  It however rejected the case that the

appellant was entitled to promotion as claimed.  It was also held that since

the marriage was contracted by the appellant without any permission, he

was not entitled to take benefit of his marriage with the foreign national.

The Tribunal  thus partly allowed O.A.No.420/2013 by its  judgment and

order dated 24.02.2015.

12. The appellant thereafter filed Review Application No.19/2015 seeking

review on  the  grounds  that  the  appellant  had  applied  for  ex-post  facto

sanction  of  marriage  on  15.01.2009  which  was  duly  recommended  by

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Section Commander and Air Officer Commanding.  It was further stated

that  in  terms  of  AFO  14/2000  the  respondents  had  to  process  the

application within 120 days and as there was complete failure on their part,

in  terms  of  said  AFO  there  would  be  deemed  consent.   This  review

application was dismissed by the Tribunal vide its order dated 03.07.2015.

13. The aforesaid judgment and orders dated 24.02.2015 and 03.07.2015

are under challenge in this appeal.  After issuance of notice the pleadings

were exchanged.  In the counter affidavit filed on behalf of the respondents

following assertions were made:

“That  another  application  dated  01.10.2009  was  subsequently received from the Appellant requesting for ex-post facto sanction for marriage already contracted along with an undertaking from the  lady,  dated  22.09.2009,  in  which  she  has  stated  that, subsequent to marriage with the Appellant, she would relinquish her  Canadian  immigration  status;  meaning  thereby,  that  after marriage  in  Dec.,  2008,  the  lady  had  not  relinquished  her Canadian immigrant status even as on 22.09.2009.  … … …”

… … … That  in  the  meantime,  his  case  for  ex-post  facto  sanction  for marriage  was  submitted  for  consideration  of  the  competent authority (AOP),  who on 23.11.2009 directed that  “the spouse should  relinquish  her  Canadian  immigrant  status  etc.  before approval of ex-post facto sanction for marriage”.  The directions of the AOP were conveyed to HQ EAC on 01.12.2009. HQ EAC vide  signal  No.  PS/471  dated  08.12.2009  informed  that  the officer  had  already  proceeded  on  release  from  the  IAF  on medical grounds w.e.f. 18.11.2009.  In the light of the release of the  officer  from  the  IAF  already  having  occurred  and  the

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Appellant was no longer subject to the Air Force Act, 1950, the matter  relating  to  his  application  for  grant  of  ex-post  facto sanction  with  Ms.  Meenu  Sangha,  an  Indian  national  holding Canadian immigration visa, did not merit being pursued further.”

14. We  heard  learned  counsel  for  the  parties  at  length  who  took  us

through the relevant documents and record.

15. The assertions made in the counter affidavit, as extracted hereinabove,

indicate that though the application was made by the appellant for ex-post

facto sanction for marriage, it was not considered since, in the meantime,

the appellant was released from the Indian Air Force on medical grounds

and as such was no longer subject to the Air Force Act, 1950.  

16. The facts on record indicate that:

i) The  appellant  intended  to  marry  Ms.  Meenu  Sangha

daughter  of  Colonel  Jagjeet  Singh  (Retd.)  holding  an  Indian

passport  but  working  with  Toronto  Dominion  Canadian  Trust

Bank with Canadian immigrant visa.

ii) It is a common ground that in terms of the relevant policy,

a serving officer would be required to obtain permission before

any marriage with a foreign national could be contracted.

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iii) On  27.10.2008  the  appellant  applied  to  the  Directorate

seeking permission to marry.

iv) According to the relevant policy document the marriage

could  not  be  contracted  without  requisite  permission to  marry

and in case no communication was received from the Directorate

for 120 days, there would be deemed consent and permission.

v) The appellant without waiting for the express permission

or  the  expiry  of  120  days,  did  contract  the  marriage  on

19.12.2008.

vi) Any violation on part  of  the officer  of  the mandate  the

concerned  policy  could  visit  him  with  the  possibility  of

departmental action including dismissal or removal from service.

17. In  the  present  case  neither  there  was  any action  taken  against  the

appellant  for  infraction  of  the  mandatory  requirement  of  the policy  nor

there  was  any  express  communication  rejecting  his  request  seeking

permission.  As a matter of fact, there was no communication at all within

120 days.

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18. After having contracted the marriage, the appellant also applied for

ex-post facto permission for marriage.  However, said application was not

considered  at  all  as,  in  the  meantime,  the  appellant  was  released  from

Indian Air Force and ceased to be governed by the provisions of the Indian

Air Force Act, as asserted in the counter affidavit.  

19. It is in this factual backdrop that the issue in question needs to be

considered.  The underlying idea behind the policy is that in case a person

governed  by  the  provisions  of  Indian  Air  Force  Act,  1950  intends  to

contract marriage with a foreign national, requisite intimation in that behalf

is required to be made and appropriate permission is also required to be

obtained. As a part  of  the exercise,  the foreign national with whom the

marriage  is  to  be  contracted  may  be  required  to  give  up  the  original

citizenship and acquire citizenship of India.    If there be any infraction or

violation of the mandate of the requirements, the concerned officer could

be visited with penalty including dismissal or removal from service.  The

policy has well laid and designed procedure including the timelines and the

time limit of 120 days within which the authorities are required to apply

their  mind  and  consider  the  application  seeking  permission.    In  case

nothing is heard within 120 days, the policy incorporates the concept of

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deemed consent or permission.  All these requirements are in respect of

those governed by the Indian Air Force Act, 1950 that is to say the serving

officials.

20. In the present case, even if we are to proceed on the footing that the

marriage  was  contracted  without  the  permission  and as  such  there  was

infraction on part of the appellant, no disciplinary action was initiated or

taken against him nor was any express rejection of his request intimated to

him at any stage.  His initial application was dated 27.10.2008 and he was

invalidated out of service with effect from 18.11.2009 on medical grounds

and not for any infraction of aforesaid policy.   As a matter of fact, the

department did not respond for more than 120 days in the matter.   

21.  In any event of the matter, what is relevant for the present purposes is

the fact that the appellant is no longer in service with Indian Air Force and

on the respondents’ own showing he has ceased to be subject to Indian Air

Force Act.  During the course of hearing we asked the learned counsel for

the respondents as to what advantages and benefits a retired service person

including  his  family  would  be  entitled  to.   We  have  been  given  to

understand that the wife may in certain cases be entitled to pension, in the

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event of death of the officer and the family including the spouse would be

entitled to benefits such as canteen facilities and membership of officers

club and such other benefits.  We further asked the learned counsel for the

respondents  that  if  an  officer  after  his  release  or  retirement  wished  to

contract  marriage  with  a  foreign  national  was  there  any  restriction  or

prohibition  under  any  of  the  policy  documents  in  force.   The  learned

counsel could not lay his hands on any such policy or point out any such

provision.   The stand of the respondents thus is clear that the policy in

question is  aimed at  regulating certain aspects  while  the officers  are  in

service.  If an officer after his release or retirement could, therefore, validly

contract  the  marriage  with  a  foreign  national  and  the  spouse  would

therefore  be  entitled  to  all  the  benefits  including  medical  or  hospital

facilities or club membership or canteen facilities etc., it does not stand to

reason why the  appellant,  at  least  after  his  release  from the  Indian  Air

Force, should be disentitled in that behalf.

22. In the facts  and circumstances of  the case,  we therefore direct  the

respondents to include the names of the wife and daughter of the appellant

in the Service Certificate at least from the date of his release or retirement

and direct the respondents to extend to the wife and the daughter of the

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appellant all such benefits which a spouse and children of a retired officer

would be entitled.

23. The appeals stand allowed in aforesaid terms.  No costs.

………........………..……..……J.                                                                        (Uday Umesh Lalit)

.………...……..…..……………J.                                 (Dr. Dhananjaya Y. Chandrachud)

New Delhi, December 05, 2018.