SQN. LDR. (RETD.) NAVTEJ SINGH versus UNION OF INDIA AND ORS. on 5 December 2018

SQN. LDR. (RETD.) NAVTEJ SINGH

v.

UNION OF INDIA AND ORS.

(Civil Appeal Nos. 11876-11877 of 2018)

DECEMBER 05, 2018

[UDAY UMESH LALIT AND

DR. DHANANJAYA Y CHANDRACHUD, JJ.]

Armed Forces: Post-retirement benefits – Entitlement to, tothe spouse and children of a retired officer – On facts, appellant-Air Force officer invalidated out of service on medical grounds –While in service applied to Director, Air Headquarter seekingpermission to marry Canadian immigrant – Appellant without waitingfor the express permission or the expiry of 120 days, contracted themarriage – Appellant then applied for ex-post facto permission formarriage, which was not considered at all – Meanwhile, the appellantwas released from Indian Air Force – Thereafter, the appellant filedan application to the Air Headquarter to include the names of hisfamily members in the Certificate of Service and issuance of ECHScards and the same was rejected – Tribunal also rejected theapplication holding that since the marriage was contracted by theappellant without any permission, he was not entitled to take benefitof his marriage with the foreign national – On appeal, held: If anofficer after his release or retirement could validly contract themarriage with a foreign national, the spouse would therefore beentitled to all the benefits including medical or hospital facilities orclub membership or canteen facilities etc. – It cannot be said thatthe appellant, at least after his release from the Air Force, would bedisentitled – Respondent directed to include the names of the wifeand daughter of the appellant in the Service Certificate from thedate of his release or retirement and extend to the wife and thedaughter of the appellant all such benefits which a spouse andchildren of a retired officer would be entitled – Armed ForcesTribunal Act, 2007 – s.30 r/w s.31(2).

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AAllowing the appeals, the Court

HELD: 1.1 The underlying idea behind the policy is that incase a person governed by the provisions of Indian Air ForceAct, 1950 intends to contract marriage with a foreign national,requisite intimation in that behalf is required to be made andBappropriate permission is also required to be obtained. As a partof the exercise, the foreign national with whom the marriage is tobe contracted may be required to give up the original citizenshipand acquire citizenship of India. If there be any infraction orviolation of the mandate of the requirements, the concernedofficer could be visited with penalty including dismissal or removalCfrom service. The policy has well laid and designed procedureincluding the timelines and the time limit of 120 days within whichthe authorities are required to apply their mind and consider theapplication seeking permission. In case nothing is heard within120 days, the policy incorporates the concept of deemed consentDor permission. All these requirements are in respect of thosegoverned by the Indian Air Force Act, 1950 that is to say theserving officials. [Para 19][674-B-E]

1.2 In the instant case, even if it is to be proceeded on thefooting that the marriage was contracted without the permissionEand as such there was infraction on part of the appellant, nodisciplinary action was initiated or taken against him nor was anyexpress rejection of his request intimated to him at any stage.His initial application was dated 27.10.2008 and he was invalidatedout of service with effect from 18.11.2009 on medical groundsand not for any infraction of aforesaid policy. As a matter of fact,Fthe department did not respond for more than 120 days in thematter. [Para 20][674-F]

1.3 The appellant is no longer in service with Indian AirForce and the respondents have showed on its own that theappellant has ceased to be subject to Indian Air Force Act. AsGregards what advantages and benefits a retired service personincluding his family would be entitled to, the wife may in certaincases be entitled to pension, in the event of death of the officerand the family including the spouse would be entitled to benefitssuch as canteen facilities and membership of officers club andHsuch other benefits. The respondents were asked that if an officer after his release or retirement wished to contract marriage witha foreign national was there any restriction or prohibition underany of the policy documents in force. The counsel could not layhis hands on any such policy or point out any such provision. Thestand of the respondents thus is clear that the policy in questionis aimed at regulating certain aspects while the officers are inservice. If an officer after his release or retirement could,therefore, validly contract the marriage with a foreign nationaland the spouse would therefore be entitled to all thebenefits including medical or hospital facilities or clubmembership or canteen facilities etc., it does not standto reason why the appellant, at least after his release fromthe Indian Air Force, should be disentitled in that behalf.[Para 21][674-G-H; 675-A-C]

1.4 The respondents are directed to include the names ofthe wife and daughter of the appellant in the Service Certificateat least from the date of his release or retirement and direct therespondents to extend to the wife and the daughter of the appellantall such benefits which a spouse and children of a retired officerwould be entitled. [Para 22][675-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11876-11877 of 2018.

From the Judgment and Order dated 24.02.2015 in OA No. 420of 2013 and dated 03.07.2015 in RA No. 19 of 2015 in OA No. 420 of2013 of the Armed Forces Tribunal, Principal Bench, New Delhi.

Gaichangpou Gangmei, Adv. for the Appellant.

Ms. Geeta Luthra, Sr Adv., Harish Pandey, Akshay Amritanshu,Varun Ahuja, Arvind Kumar Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. Delay condoned.

2. These appeals under Section 30 read with Section 31(2) of theArmed Forces Tribunal Act, 2007 (“The Act”, for short) are directedagainst (i) judgment and order dated 24.02.2015 in O.A. No.420/2013and (ii) judgment and order dated 03.07.2015 in Review ApplicationNo.19/2015 in O.A. No.420/2013; passed by the Tribunal[1].

1Armed Forces Tribunal, Principal Bench, New Delhi.

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A3. In aforesaid O.A. No.420/2013, the appellant had challengedthe order invalidating him from service on medical grounds and had prayedfor directions that he be promoted to the post of Wing Commander andthat the names of his family members (wife and daughter) be recordedin the service record and allow all benefits due to them. However, whileissuing notice on 08.01.2016 the matter was limited by this Court to theBquestion whether “marriage of the petitioner with Meenu Sangha can berecognized for purposes of grant of post-retirement benefits, medicalfacilities and family pension etc.” Accordingly leave to appeal is grantedunder Section 31(2) of the Act in respect of the issue in question.

4. The appellant after completing training from Air ForceCAcademy, Hyderabad, was granted commission in the rank of PilotOfficer in the branch of Flying Navigation of Indian Air Force with effectfrom 16.12.1995. Thereafter, he received promotions in due course oftime and was finally promoted to the rank of Squadron Leader.

5. Sometime in the year 2001 the appellant was diagnosed ofDDysthemia and Alcohol Dependence Syndrome and PrimaryHypothyroidism and since then was put in low medical category. AMedical Board was constituted to consider his medical condition and on27.02.2009 the Medical Board found him to be unfit for all flying duties.The appellant was given the option of being transferred to theEAdministrative Branch but expressed his unwillingness. In thecircumstances, Invaliding Medical Board was constituted to considerthe case which declared that the appellant be invalidated out of serviceon medical grounds. The aforesaid recommendation of the InvalidingMedical Board was approved and the appellant was invalidated out ofservice with effect from 18.11.2009 in the rank of Squadron Leader.F

6. While in service, on 27.10.2008 the appellant had applied to theDirector, 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. JagjeetGSingh (Retd.). My fiancée is holding an Indian passport with aCanadian immigrant visa and is working with Toronto DominionCanadian Trust bank. The bank is not supported/funded by theCanadian government.”

According to the appellant, he was orally allowed to proceed withmarriage and as such he contracted marriage on 19.12.2008.H

7. Air Force Order (AFO 14 of 2000) dated 09.06.2000 asamended from time to time dealt with the subject “Marriage – IAFPersonnel” and paragraphs 5 to 9) of this order dealt with “Marriagewith Foreign National”. For the present purposes, Air Force order (AFO04 of 2009) dated 20.03.2009 was the relevant policy document whenthe issue arose for consideration. Paragraphs 2,7,8,9,10,11 and 16(c) ofsaid Air Force Order dated 20.03.2009 are to the following effect:

“2. Prior permission of the competent authority is mandatory forall air-warriors before contracting marriage as indicated in paras3 to 9 below. Application to marry can only be submitted if theage on the date of marriage is minimum 21 years (completed) formale and minimum 18 years (completed) for female. Theprovisions of this AFO would apply for all cases of re-marriage.

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7. Provisions regarding marriage with a foreign national arecontained in Chapter V of IAP 3904. Marriage with a foreignnational is not to be contracted without the prior sanction of theAOP. However, nationals of Bhutan will be deemed to be Indiannationals for this purpose.

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

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

(a) Three copies of recent passport size photo graph of theperson with whom marriage is intended (b)A separate application (in quadruplicate) seekingpremature retirement or release from service on personalgrounds.

(c) An undertaking from the air-warrior to the effect thathe will pay the training cost, if his or her spouse refusesto acquire Indian citizenship or willfully delays acquisitionof Indian citizenship.

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

B10. The formats of the PR application and the undertaking to begiven by the air-warrior as well as the foreign national are givenin Appendix ‘C’, ‘E’ & ‘F’ respectively to this Order.

11. If an air-warrior contracts marriage with a foreign nationalwithout obtaining prior permission of the competent authority, he/Cshe would be liable for disciplinary action or administrative actionfor dismissal/removal/compulsory retirement from service, asconsidered appropriate by the competent authority. Cases withsufficient documentary proof of such violations in respect ofofficers and warrant ranks are to be forwarded to Air HQ/Depttof JAG (Air) after vetting by CJA at Comd HQ for initiation ofDdisciplinary administrative action. Command HQ may takenecessary action in respect of airmen of the rank of Sgt and below[including NCs (E)].

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E16(c). Application for marriage with foreign nationals will also beprocessed as mentioned in sub-para (b) above. As per para 1(i)of COI letter No.20(38)/2001/D(Coord) dated 12[th] July, 2002, “allrequests of the members of the Armed Forces for permission tomarry a foreign national will have to be processed within 120days. If such a request is not finalized within the period of 120Fdays, the consent will be deemed to have been given.” Therefore,such cases are to be given utmost importance and processedexpeditiously within the stipulated timeframe.”

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8. On 22.09.2009 the wife of the appellant had submitted anapplication to relinquish Canadian Immigrant Status. In November, 2010,Gthe wife of the appellant left her job and joined the appellant in India tolook after the appellant. As the appellant could not recover, he moved toCanada for further treatment. While the couple was in Canada, theywere blessed with a daughter on 03.10.2011. After his conditionrecovered, the appellant returned back to India with his wife and daughter.On 12.06.2013, the appellant applied to the Director, Directorate of AirH

Veteran, Air Headquarters to include the names of his family membersin the Certificate of Service and issuance of ECHS cards. Accordingto the appellant, on 19.06.2013, permission was granted by the JointDirector to issue the Certificate as prayed for but the permission waslater withdrawn on instructions of DPO, Air Headquarters on 16.07.2013.

9. In these circumstances, the appellant filed O.A.No.420/2013submitting that his medical condition was attributable/aggravated byconditions of service and prayed for the relief and directions as statedabove.

10. The respondents filed affidavit in opposition submitting interalia as under:

“7. That the applicant applied for permission for marriage on 27Oct 2008. AFO 14/2000 and AFO 04/2009 lays down the QRs ofmarriage with foreign nationals. His fiancée was holding an Indianpassport with a Canadian immigration visa and was working withToronto Dominion Canadian Trust Bank. Since the applicant hadnot submitted desired mandatory papers along with the applicationand the fiancée of the applicant was not fulfilling the QRs as laiddown by AFO 04/09. The applicant was informed to submitnecessary documentary evidence before his said application couldbe processed.

8. That from the available records and a draft CoS submitted bythe applicant, it is clear that on the day of Invalidment i.e. 18 Nov09, the name of Ms. Meenu Sanga was not mentioned in the officialrecords 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 Jan2009 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 nationalwas not processed by the concerned directorate.”

11. The Tribunal did not accept the case that the medical conditionof the appellant was attributable to or was aggravated by conditions ofservice. It however held that the appellant had 30% disability whichwas to be rounded off to 50% and consequently was entitled to disability A

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Apension @ 50% with interest @ 12% per annum. It however rejectedthe case that the appellant was entitled to promotion as claimed. It wasalso held that since the marriage was contracted by the appellant withoutany permission, he was not entitled to take benefit of his marriage withthe foreign national. The Tribunal thus partly allowed O.A.No.420/2013by its judgment and order dated 24.02.2015.B

12. The appellant thereafter filed Review Application No.19/2015seeking review on the grounds that the appellant had applied for ex-postfacto sanction of marriage on 15.01.2009 which was duly recommendedby Section Commander and Air Officer Commanding. It was furtherstated that in terms of AFO 14/2000 the respondents had to process theCapplication within 120 days and as there was complete failure on theirpart, in terms of said AFO there would be deemed consent. This reviewapplication was dismissed by the Tribunal vide its order dated 03.07.2015.

13. The aforesaid judgment and orders dated 24.02.2015 and03.07.2015 are under challenge in this appeal. After issuance of noticeDthe pleadings were exchanged. In the counter affidavit filed on behalfof the respondents following assertions were made:

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

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That in the meantime, his case for ex-post facto sanction formarriage was submitted for consideration of the competentauthority (AOP), who on 23.11.2009 directed that “the spouseshould relinquish her Canadian immigrant status etc. beforeapproval of ex-post facto sanction for marriage”. The directionsof the AOP were conveyed to HQ EAC on 01.12.2009. HQ EACvide signal No. PS/471 dated 08.12.2009 informed that the officerhad already proceeded on release from the IAF on medical groundsw.e.f. 18.11.2009. In the light of the release of the officer fromthe IAF already having occurred and the Appellant was no longer G

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subject to the Air Force Act, 1950, the matter relating to hisapplication for grant of ex-post facto sanction with Ms. MeenuSangha, an Indian national holding Canadian immigration visa, didnot merit being pursued further.”

14. We heard learned counsel for the parties at length who tookus through the relevant documents and record.

15. The assertions made in the counter affidavit, as extractedhereinabove, indicate that though the application was made by theappellant for ex-post facto sanction for marriage, it was not consideredsince, in the meantime, the appellant was released from the Indian AirForce on medical grounds and as such was no longer subject to the AirForce Act, 1950.

16. The facts on record indicate that:

i) The appellant intended to marry Ms. Meenu Sangha daughterof Colonel Jagjeet Singh (Retd.) holding an Indian passport butworking with Toronto Dominion Canadian Trust Bank withCanadian immigrant visa.

ii) It is a common ground that in terms of the relevant policy, aserving officer would be required to obtain permission before anymarriage with a foreign national could be contracted.

iii) On 27.10.2008 the appellant applied to the Directorate seekingpermission to marry.

iv) According to the relevant policy document the marriage couldnot be contracted without requisite permission to marry and incase no communication was received from the Directorate for120 days, there would be deemed consent and permission.

v) The appellant without waiting for the express permission or theexpiry of 120 days, did contract the marriage on 19.12.2008.

vi) Any violation on part of the officer of the mandate theconcerned policy could visit him with the possibility of departmentalaction including dismissal or removal from service.

17. In the present case neither there was any action taken againstthe appellant for infraction of the mandatory requirement of the policynor there was any express communication rejecting his request seekingpermission. As a matter of fact, there was no communication at allwithin 120 days.

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18. After having contracted the marriage, the appellant also appliedfor ex-post facto permission for marriage. However, said applicationwas not considered at all as, in the meantime, the appellant was releasedfrom Indian Air Force and ceased to be governed by the provisions ofthe Indian Air Force Act, as asserted in the counter affidavit.

B19. It is in this factual backdrop that the issue in question needs tobe considered. The underlying idea behind the policy is that in case aperson governed by the provisions of Indian Air Force Act, 1950 intendsto contract marriage with a foreign national, requisite intimation in thatbehalf is required to be made and appropriate permission is also requiredto be obtained. As a part of the exercise, the foreign national with whomCthe marriage is to be contracted may be required to give up the originalcitizenship and acquire citizenship of India. If there be any infractionor violation of the mandate of the requirements, the concerned officercould be visited with penalty including dismissal or removal from service.The policy has well laid and designed procedure including the timelinesDand the time limit of 120 days within which the authorities are required to apply their mind and consider the application seeking permission. Incase nothing is heard within 120 days, the policy incorporates the conceptof deemed consent or permission. All these requirements are in respectof those governed by the Indian Air Force Act, 1950 that is to say theserving officials.E

20. In the present case, even if we are to proceed on the footingthat the marriage was contracted without the permission and as suchthere was infraction on part of the appellant, no disciplinary action wasinitiated or taken against him nor was any express rejection of his requestintimated to him at any stage. His initial application was dated 27.10.2008Fand he was invalidated out of service with effect from 18.11.2009 onmedical grounds and not for any infraction of aforesaid policy. As amatter of fact, the department did not respond for more than 120 days inthe matter.

21. In any event of the matter, what is relevant for the presentGpurposes is the fact that the appellant is no longer in service with IndianAir Force and on the respondents’ own showing he has ceased to besubject to Indian Air Force Act. During the course of hearing we askedthe learned counsel for the respondents as to what advantages andbenefits a retired service person including his family would be entitledHto. We have been given to understand that the wife may in certain cases be entitled to pension, in the event of death of the officer and the familyincluding the spouse would be entitled to benefits such as canteen facilitiesand membership of officers club and such other benefits. We furtherasked the learned counsel for the respondents that if an officer after hisrelease or retirement wished to contract marriage with a foreign nationalwas there any restriction or prohibition under any of the policy documentsin force. The learned counsel could not lay his hands on any such policyor point out any such provision. The stand of the respondents thus isclear that the policy in question is aimed at regulating certain aspectswhile the officers are in service. If an officer after his release orretirement could, therefore, validly contract the marriage with a foreignnational and the spouse would therefore be entitled to all the benefitsincluding medical or hospital facilities or club membership or canteenfacilities etc., it does not stand to reason why the appellant, at least afterhis release from the Indian Air Force, should be disentitled in that behalf.

22. In the facts and circumstances of the case, we therefore directthe respondents to include the names of the wife and daughter of theappellant in the Service Certificate at least from the date of his releaseor retirement and direct the respondents to extend to the wife and thedaughter of the appellant all such benefits which a spouse and childrenof a retired officer would be entitled.

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

Nidhi Jain

Appeals allowed.

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