1. Service officer invalidated on medical grounds — Marriage to foreign national without prior permission — Claim for inclusion of family in service records for post-retirement benefits. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 )
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2018 Supreme(SC) 1220
SUPREME COURT OF INDIA
Uday Umesh Lalit, Dhananjaya Y. Chandrachud, JJ.
Sqn. Ldr. (Retd.) Navtej Singh – Appellant
Versus
Union of India & Ors. – Respondents
Civil Appellate Jurisdiction Civil Appeal Nos. 11876-11877 of 2018 (D. No. 41636 of 2015)
Decided On : 05-12-2018
Important Points
IMPORTANT POINT
If an Air Force officer contracts marriage with a foreign national after his release, the spouse shall be entitled to all the benefits including medical or hospital facilities or club membership or canteen facilities etc.
If an Air Force officer contracts marriage with a foreign national after his release, the spouse shall be entitled to all the benefits including medical or hospital facilities or club membership or canteen facilities etc.
Subject
Military Law - Marriage of Armed Forces Personnel with Foreign Nationals
Act Referred
Headnote
Air Force – Policy regarding an officer marrying foreign national – Permission should be decided either way within 120 days failing which it will be deemed to be allowed – Any contravention would attract departmental enquiry and entail removal or dismissal from service – Appellant applying for permission to marry a person with Canadian immigrant visa – No communication issued within 120 days – The person relinquishing her Immigration Visa – Appellant contracting marriage – Appellant released on medical grounds – appellant applying for ex post facto sanction – Not considered – Appellant’s application for incorporating his spouse in family details for post-retirement benefits – Turned down because he was no more in service – No restriction on a released officer marrying a foreign national – Appellant’s spouse held entitled to all the benefits including medical or hospital facilities or club membership or canteen facilities etc., (Para 21)
Facts of the case:
The appellant was granted commission in the rank of Pilot Officer. Thereafter, he received promotions in due course of time and was finally promoted to the rank of Squadron Leader.
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 which 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. The Invaliding Medical Board declared that the appellant be invalidated out of service on medical grounds. The appellant was invalidated out of service with effect from 18.11.2009 in the rank of Squadron Leader.
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:
According to the appellant, he was orally allowed to proceed with marriage and as such he contracted marriage on 19.12.2008.
On 12.06.2013, the appellant applied to the Director, Directorate of Air Veteran, Air 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.
The appellant filed O.A. submitting that his medical condition was attributable/aggravated by conditions of service and prayed for the relief and directions.
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 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 the O.A.
This review application filed by the appellant was also dismissed by the Tribunal.
The matter was limited by Supreme 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.
Finding of the Court:
Appellant’s spouse is entitled to all the benefits including medical or hospital facilities or club membership or canteen facilities etc
Result: Appeals allowed.
Legal Category Hierarchy
Table of Contents
2. Appellant claims deemed consent and ex-post facto sanction — Respondents contend mandatory requirements were not met and the appellant ceased to be subject to the Air Force Act. (Para 10 , 12 , 13 )
3. Policy regulating marriage with foreign nationals applies to serving personnel; no disciplinary action was taken for the breach, and the appellant is no longer subject to the Air Force Act. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 )
4. Service-time marriage restrictions for personnel subject to the Air Force Act do not justify denying post-retirement benefits to a spouse after the individual is no longer subject to the Act. (Para 19 , 21 )
5. Respondents directed to include the spouse and child in the Service Certificate from the date of release and extend all applicable retired officer benefits. (Para 22 , 23 )
6. Does the concept of deemed consent apply to marriage permissions for Air Force personnel?
Yes, according to the relevant Air Force Order, if a request for permission to marry a foreign national is not finalized within 120 days, consent is deemed to have been given. (Para 7 , 16 , 17 , 20 )
7. Can service-time marriage restrictions be used to deny post-retirement benefits to a spouse?
No. Policies regulating marriage for serving personnel are aimed at those subject to the Air Force Act. Once an officer is released and no longer subject to the Act, such restrictions cannot be used to disentitle the spouse from post-retirement benefits. (Para 15 , 18 , 19 , 21 )
8. What are the potential consequences for an Air Force officer contracting marriage with a foreign national without prior permission?
Such an officer may be liable for disciplinary or administrative action, which can include dismissal, removal, or compulsory retirement from service. (Para 7 , 16 , 19 )
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) judgment and order dated 03.07.2015 in Review Application No.19/2015 in O.A. No.420/2013; passed by the Tribunal [Armed Forces Tribunal, Principal Bench, New Delhi.].
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 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 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 AOP. However, nationals of Bhutan will be deemed to be Indian nationals for this purpose.
8. An air-warrior intending to marry a foreign
