judgement:
Appeal Nos.
2653 54 of 1991.
From the Judgment and Order dated 15.2.91 of the Punjab and Haryana High Court in Civil Revision Nos. 2998 and 2919 of 1990.
D.V. Sehgal and N.K. Aggarwal for the Appellant.
G.L, Saghi, P.P. Tripathi and Suchinto Chatterji for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
The point which requires determination in these two appeals, arising from a common judgment and order dated February 15, 1991 of a Division Bench of the Punjab and Haryana High Court at Chandigarh, in Civil Revision Nos.
2918 and 2919 of 1990 is, whether the payment of alimony is admissible 957 without the relationship between the spouses being terminated.
The wife appellant was married to the husband respondent on September 19,1972 at Amritsar, in the State of Punjab.
Three children were born from the wed lock and are at present living with their father.
Out of them two are males, their respective years of birth being 1973 and 1980 and the third is a female born in the year 1976.
On 28 8 1985 a petition under section 13 B of (hereafter referred to as the Act ') seeking divorce by mutual consent was received by the court of the Additional District Judge, Amritsar purported to have been failed jointly by the two spouses.
It was stated therein that the parties had been living separately for over a year due to incompatibility of temperament and their effort to settle their differences amongst themselves, or with the aid of friends and relatives, had been futile.
On receipt the petition was kept pending, as was the requirement of section 13 B of the Act.
According to the wife she was not a consenting party to the filing of such petition at all.
Her version was that the husband had duped her in obtaining her signatures on blank papers on a false pretext and in turn had employed those papers in the said petition for divorce.
On coming to know of the pendency of the petition, she immediately filed objections before the court, obstructing the grant of petition.
The respective pleas of the parties were put to issue and evidence was led.
According to the wife some understanding later was reached between the parties on the basis of which she was to be put back in the matrimonial home and thus the petition was got dismissed on 19 8 1987, on the basis of the joint statement of the parties before the Additional District Judge, Amritsar which was to the following effect: "We agree that applications under sections 24 and 25 of may be dismissed.
We also agree that since the parties have not been able to make a joint statement within a period of six months of the original petition, the main petition under section 13B of the may be dismissed.
Otherwise too, the parties to the marriage do not want to proceed with their main application under section 13 of the and the same be also dismissed and the parties may be left to bear their own costs.
On the basis of the above statement, the court passed the following order, the same day: "The applicant and counsel for the parties have made their statements recorded separately the main petition under section 13 and 958 also applications under sections 24 and 25 of the Hindu marriage Act are dismissed as withdrawn.
The parties are left to bear their own costs.
The file be consigned.
" It appears that the dismissal of the petition under section 13 B led only to a temporary truce, and not peace as hoped.
Rehabilitation in the matrimonial home evaded the wife.
The husband, who in the meantime had established his business at Ghazibad in Utter Pradesh, barely three months after the dismissal of the petition under section 13 B. approached the District Court at Ghaziabad in a regular petition for divorce under section 13 of the Act levelling, amongst others, allegations of adultery against the wife.
To meet the offensive the wife refuted the charge of adultery and prayed to the Ghaziabad Court grant of maintenance pendente lite, which the Court fixed at Rs. 1000 per month.
It appears since the husband had obstacled payment of maintenance pendente lite, divorce proceedings stand stayed under orders of the High Court of Allahabad, until the order of grant of maintenance pendente lite was obeyed.
The matter thus stands stagnated there.
The wife then went in an offensive.
She moved the court of Additional District Judge, Amritsar on 22 3 1990, under section 15 of the for the grant of permanent alimony on the plea that she was facing starvation, when her husband was a multi millionaire, having cars, telephone facilities and other amenities of life.
Simultaneously she moved the court under section 24 of the for maintenance pendente lite and litigation expenses.
After a grim contest between the parties the Additional District Judge, Amritsar on September 20, 1990 allowed the petition under section 24 of the Act granting her a sum of Rs. 6000 as litigation expenses and Rs. 2000 per month as maintenance pendente lite, from the date of application.
The husband challenged the said order of grant in revision before the High Court of Punjab and Haryana at Chandigarh.
The wife too approached the High Court in revision seeking enhancement of sums under both counts.
Both the revision petitions being referred to a larger bench were disposed of by the common judgment under appeal sustaining the objection of the husband that an application under section 25 of the Act was, in the facts and circumstances, not maintainable; the Matrimonial Court at Amritsar, in the earlier litigation, having not passed any decree of the variables known as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, or Divorce, so as to quash proceedings under section 25 and sequally quashing the order under section 24 of the Act granting litigation expenses and maintenance pendente lite.
Hence these appeals.
959 Section 25 of the Act, as it now stands, after amendment by Act 68 of 1976 is reproduced hereunder: "25 PERMANENT ALIMONY AND MAINTENANCE (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for purpose by either the wife o r the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent 's own income and other property, if any, the income and other property of the applicant, [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2)If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub section (1), it may at the instance of either party, very, modify or rescind any such order in such manner as the court may deem just.
(3)If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party very, modify or rescind any such order in such manner as the court may deem just].
" It is relevant to reproduce Section 28 as well: "28 APPEAL FROM DECREES AND ORDERS (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act, under 960 section 25 or Section 26 shall, subject to the provisions of sub section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order." Right from its inception, at the unamended stage, the words "at the time of passing any decree or any time subsequent thereto" posed difficulty.
The majority of the High Courts in the country took the view that those words indicated that an order for permanent alimony or maintenance in favour of the wife or the husband could only be made when a decree is passed granting any substantive relief and not where the main petition itself is dismissed or withdrawn.
It was also gathered that if no request for alimony was made at the time of passing the decree the same relief could be sought subsequently on an application.
The relief of permanent alimony was deduced to be ancilliary or incidental to the substantive relief, and it was given to the party to whom such relief was due.
The expression "any decree" was viewed to have been used having regard to the various kinds of decrees such as decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, and Divorce, which could be passed either on contest or consent.
Some of the High Courts also had occasion to distinguish between the expression "passing any decree" referred to in section 25 (1) with "decrees made" referred to in section 28 providing for appeals from decrees and orders made by the Court in any proceeding under the Act, and such decrees being appealable, as decrees of the Court made in exercise of its original civil jurisdiction.
It led to the determination of the question whether the denial of relief under the Act, when making a decree in the sense appealable under section 28, could be it a decree passed within the meaning of Section 25 entitling the respective spouses to claim permanent alimony thereunder.
On this question too there has been rife a difference of opinion.
A Division Bench of the Gujarat High Court in Kadia Harilal Purshottam vs Kadia Lilavati Gokaldas AIR [1961] Gujarat 202; ruled that the words "at the time of passing any decree or any time subsequent thereto" occurring in section 25 meant passing of any decrees of the kind referred to in the earlier provisions of the Act and not at the time of dismissing the petition for any relief provided in those 961 sections, or any time subsequent thereto.
It was viewed that the expression "any decree" did not include an order of dismissal and that the passing of an order of dismissal of the petition could not be regarded as the passing of decree within the meaning of section 25.
On that view a petition for permanent alimony preferred by the wife was dismissed when the petition of the husband for restitution of conjugal rights had been dismissed.
In Shantaram Gopalshet Narkar vs Hirabai, AIR [1962] Bombay 27 Vol.
49, a learned Single Judge of the Bombay High Court took the view that in order to confer jurisdiction upon the court to proceed under section 25(1) there must be a decree as contemplated under the and one of the decrees can.
be under section 10(1) (B).
And when the petition was allowed to be withdrawn, there was no decree passed in favour of the husband, and if there was no decree, the court had no jurisdiction to pass any order granting permanent alimony to the wife under section 25(1).
In Minarani Majumdar vs Dasarath Majumdar AIR [1963] Calcutta 428 Vol.
50, a Division Bench of the Calcutta High Court ruled that an order dismissing a petition by the husband for divorce under section 13 is not a decree within the meaning of section 25 and as such when no substantive relief is granted under sections 9 to 14, there is no passing of a decree as contemplated by section 25 and hence no jurisdiction to make an order for maintenance under the said section.
Harilal 's case (supra) of the Gujarat High Court was noticed and relied upon.
A learned Single Judge of the Bombay High Court in Shantaram Dinkar Karnik vs Malti Shantaram Karnik, AIR [1964] Bombay 83 vol.
51 relying on the earlier decision of that court in Shantaram Gopalshet 's case (supra) and kadia Hiralal 's case (supra) reaffirmed the view that the expression "passing of any decree" only referred to passing of any decrees provided for in section 9 to 13 of the Act, even though technically speaking dismissal of a suit or a petition may be called a decree but not for the purpose of section 25 confering jurisdiction on the Matrimonial Court to grant permanent alimony.
A Division Bench of the Orissa High Court in Akasam Chinna Babu vs Akasam Parbati & Another AIR [1967] Orissa 163 Vol.
54 denied the relief of permanent alimony when the petition for divorce of the husband had been dismissed.
The views of the Bombay High Court and the, Gujarat High Court above referred to were taken in aid to get to that view.
A three Judge full bench of the Punjab and Haryana High Court in Durga 962 as vs Smt.
Tara Rani,AIR (1971) Punjab and Haryana 141 Vol.
58, in a different context, while determining the question whether a party to a decree or divorce could apply for maintenance under sub section (1) of section 25 of the Act after which decree has been granted, ruled that the proceedings for grant of permanent alimony were incidental to the main proceeding and as such an application for alimony could be made even after the grant of the decree for divorce.
A learned Single Judge of that Court, however, in Gurcharan Kaur vs Ram chand AIR 1979 Punjab and Haryana 206 Vol.
66 even while relying, on the full bench decision afore referred went on to deny permanent alimony to the wife hose claim for decree of Nullity of Marriage stood dismissed and on that basis the petition for alimony was held not maintainable.
In Darshan Singh vs Mst.
Daso AIR Vol.
67 a learned single Judge of the Rajasthan High Court made a distinction between the expression "passing any decree" occurring in section 25 and the expression decree made" under section 28.
He viewed that the former expression meant granting any relief of the nature stated in sections 9 to 13 while the later meant granting or refusing the relief.
In other words, it meant that passing of any decree as to mean granting any relief, and the making of any decree was to mean granting or refusing any relief.
A Division Bench of the Delhi High court too in Smt.
Sushma vs Shri Satish Chander AIR 1984 Delhi 1 Vol.
71 taking stock of the above referred to views of the Rajasthan, Orissa.
Bombay, Calcutta and Gujarat High Courts affirmedly took the view that the passing of the decree in section 25 meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and not the passing of a decree dismissing the petition.
It was further held that if the petition fails then no decree is passed, i.e., the decree is denied to the applicant and therefore alimony cannot be granted in a case where a decree is refused because in such a case the marriage subsists.
The word "decree" in matrimonial cases was held to have been used in a special sense different from that in which it is used in the Civil Procedure Code.
Following Delhi High Court 's decision in Sushma 's case (supra), a learned Single Judge of the Allahabad High Court in Vinod Chandra Sharma vs Smt.
Rajesh Pathak AIR 1988 Allahahad 150 Vol.
75 opined that when an application for divorce is dismissed, there is no decree passed and obviously therefore alimony cannot he granted because in such a case the marriage subsists.
963 A learned Single Judge of the Madras High Court in Ranganatham vs Shyamla AIR 1990 Madras 1 Vol. 77 too following the above decisions held that the existence of any of the decrees referred to in sections 9 to 13 is a condition precedent to the exercise of jurisdiction under section 25 (1) of the Act and the granting of ancilliary relief for permanent alimony and maintenance, when the main petition was dismissed, was not permissible.
A divergent view, however, was struck by a learned Single Judge of the Punjab and Haryana High Court in Smt.
Swaran Lata vs Sukhvinder Kumar(1986) 1 Hindu Law Reporter 363 taking the view that when the rights of the parties stand determined conclusively with regard to matters in controversy, irrespective as to whether relief is granted or not, it culminates in a decree and on the basis of that decree, the wife would be entitled to claim maintenance or permanent alimony under section 25 of the Act.
Not only was on such interpretation of sections 25 and 28 the view taken but liberality of interpretation was injected to justify the view.
It was expressed that when the right of the wife to maintenance was assured under section 125 of the Code of Criminal Procedure, 1973 and section 18 of the and when that right of the wife was not being disputed, the court, in order to avoid multiplicity of proceedings could give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself.
There the objection of the husband to the jurisdiction was termed as technical and the maintainability of claim under section 25 was upheld.
A learned Single Judge of the Bombay High Court in Sadanand Sahadeo Rawool vs Sulochana Sadanand Rawool, AIR 1989 Bombay 220 Vol.
76 also took a similar view and based his decision on "necessity of the times" expressing that technicalities should not be allowed to away any court.
In the situation, the dismissal of petition for divorce was held to be no bar to grant maintenance under section 25 to the successful spouse.
Then in Surendra Singh Chaudan vs Mamta Chauhan II(1990) Divorce & Matrimonial Cases 208 a learned Single Judge of the Madhya Pradesh High Court taking the view that the dismissal of a petition amounts to passing of a decree for the purposes of Section 25 of the Act held that claim for permanent alimony was maintainable.
The learned Judge ruled that there appeared to be no justification for curtailing the ambit of the words to go on to hold that a decree is not a "decree" for the purposes of section 25 of the Act, though a "decree" for the purposes of section 28 of the Act.
Here again the intention of the legislature was gathered avoiding multiplicity of proceedings.
so that every dispute between the parties, particularly connected with matters like maintenance etc. should be settled in the 964 same proceedings.
A learned Single Judge of the Bombay High Court in Modilal Kalaramji Jain vs Lakshmi Modilal Jain AIR 1991 Bombay 440 Vol.
78 omitting the word "passing" from the expression, interpreted the expression "any decree" to include an order refusing to grant matrimonial relief and on that basis held adjudication of claim of permanent maintenance to be within the jurisdiction of the matrimonial court.
Same is the view of the Andhra Pradesh High Court in Shilla Jagannadha Prasad alias Ram vs Smt.
Shilla Lalitha Kumari [1988] 1 Hindu Law Reporter 26 and some other cases which need not be multiplied.
The preamble to the suggests that it is an Act to amend and codify the law relating to marriage among Hindus.
Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters.
Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed.
Now the other law in the context which prevailed prior to that was the unmodified Hindu law on the subject.
Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case law developed.
Now with effect from December 21, 1956, the is in force and that too in a codified form.
Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus.
Section 18 (1) of the entitles a Hindu wife to claim maintenance from her husband during her life time.
Sub section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein.
So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband.
On the other hand, under the , in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the , and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, 965 with or without her consent.
Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her.
On or at the time of the happening of that event, the court being siezen of the matter, invokes its ancilliary or incidental power to grant permanent alimony.
Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief.
The court further retains the power to chance or alter the order in view of the changed circumstances.
Thus the whole exercise is within the gammit of a diseased of a broken marriage.
And in order to avoid conflict of perceptions the legislature while codifying the Hindu 'Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act.
In other words without the marital status being affected or disrupted by the matrimonial court under the the claim of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption.
The wife 's claim to maintenance necessarily has then to be agitated under the which is a legislative measure later in point of time than the , though part of the same socio legal scheme revolutionizing the law applicable to Hindus.
Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant.
And that such judgment, order or decree is conclusive proof as to the conferral, accrual,or taking away of such.
legal character from a point of time as declared by the court.
Such judgments are known as judgments in rem, binding the whole world.
But the judgment of that kind must have done something positive, onwards.
This provision is indicative of the quality of matrimonial jurisdiction.
We have thus, in this light, no hesitation in coming to the view that when by court intervention under the , affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time.
It also retains the power subsequently to be invoked on application by a party entitled to relief.
And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.
In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and 966 whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18 (1) of the .
The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other.
As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.
Relief to the wife may also be due under section 125 of the Code of Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest.
This provision however has two peculiar features: (i) the provision applies to all and not only to Hindus; and (ii) maintenance allowance cannot exceed a sum of Rs. 500 per mensem.
But this is a measure in the alternative to provide destitute wives.
This court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it.
Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute.
These are the observations of V.K. Krishna Iyer, J. in Carew and Company vs Union of India ; at pages 803 804.
Towards interpreting statutes, the court must endeavour to see its legislative intendment.
Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the Provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences.
See Motor Owners ' Insurance Company, Limited vs Jadavji Keshavji Modi and others [1981] 4 SCC 660 paras 14.
15 and 16.
These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the for a should not stand in her way and let her cash on her claim over ruling all objections.
It was asserted that the Amritsar court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn.
On the afore analysis and distinction drawn between the fora and perceptives, 967 it is difficult to come to the view that a claim which is ancilliary or incidental in a matrimonial court under the could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the .
As said before, these two enactments keeping apart, the remaining two, i.e., and Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio legal scheme applicable to Hindus.
When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence.
These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts.
These are matters which go to the root of the jurisdiction.
The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties.
By rejecting a claim, the matrimonial court does make an appealable degree in terms of section 28, but neither affects nor disrupts the marriage.
It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status.
Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician.
On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for (,rant of maintenance under section 25 of the was ill advised.
The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances.
It is still open to the wife to stake her claim to maintenance in other fora.
The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are over ruled.
The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view.
The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs.
Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us.
It is for directing the appellant to pay arrears of maintenance.
While granting leave 968 this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000 per mensem by way of maintenance to the wife month to month by bank draft.
In the Interlocutory Application there is an allegation that this Court 's orders have not been complied with.
Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith.
U.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The parties were married in 1972 in Punjab.
In 1985, a petition for divorce by mutual consent was filed in court at Amritsar The appellant wife alleged that she was not a consenting party, and the petition was dismissed in 1987 following an agreement on the basis of which she would be put back in the matrimonial home.
However, barely three months later, the respondent husband filed a regular petition for divorce at Ghaziabad inter alia alleging adultery against his wife.
The appellant wife refuted the charge.
The Court granted her maintenance pendente lite at Rs. 1,000 p.m.
The husband not paving this amount, the divorce proceedings stand stayed.
On 22nd March, 1990 the appellant moved the District judge, Amritsar and was granted Rs. 6,000as litigation expenses and Rs. 2,000as maintenance pendente lite from the date of application under section 24.
She also claimed permanent alimony and maintenance under section 25 of the .
On appeal, the High Court held that an application under section 25 was not 955 maintainable as the matrimonial court at amritsar had not passed any decree for restitution of conjugal rights, judicial separation, nullity or divorce.
Sequelly it quashed the order under section 24 of the Act.
Dismissing the appeal, this Court HELD:The right of permanent maintenance in favour of the husband or the wife is dependent (in the Court passing a degree of the kind envisaged under Ss.
9to 14 of the Act.
In (other words, without the marital status being affected or disrupted by the matrimonial court under the the claim (of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption.
Kadia Martial Purshotham vs Kadia Lilavati Gokaldas AIR 1961 Guj 202; Shantaram Gopalshet Narkar vs Hirabai, AIR 1962 Bom 27 Minarani Majumdar vs Dasarath Majumdar AIR 1963 Cal 428; Shantaram Dinkar Karnik vs Malti Shantaram Karnik AIR 1964 Bom 83; Akasam Chinna Babu vs
Akasam Parbati, AIR 1967 Ori 163; Gurcharan Kaur vs Ram Chand, AIR 1979 P & H 206; Darshan Singh vs Mst.
, AIR 1980 Raj 102; Smt.
Sushama vs Satish Chander, AIR 1984 Del 1; Vinod Chandra Sharma vs Smt.
Rajesh Pathak, AIR 1988 All 150 and Ranganatham vs Shyamala AIR 1990 Mad 1, affirmed.
Swaran Lata vs
Sukhvinder Kumar (1986) 1 Hindu LR 363; Sadanand Sahadeo Rawool vs Sulochana Sadanand Rawool, AIR 1989 Bom 220; Surendra Singh Chauhan vs Mamta Chauhan, 11 1990 Divorce & Matrimonial Cases 208; Modilal kalaramji Jain vs Lakshmi Modilal Jain AlR ; and Shilla Jagannadha Prasad vs Smt.
Shilla Lalitha Kumari 1988 Hindu LR 26, overruled.
Durga Das vs Smt.
Tara Rani, AIR & H 141, referred to.
2.A Court intervening under the undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at the juncture when the marital status is affected or disrupted.
It also retains the power subsequently to be invoked on application by a party entitled to relief.
A nd such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.
3.While sustaining her marriage and preserving her marital status, a Hindu wife 's claim to maintenance is codified is S.18 of the Hindu Adoptions 956 and Maintenance Act, 1956 and must necessarily be agitated thereunder.
4.The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other.
As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.
Carew, & Co. vs Union of India ; and Motor Owners ' Insurance Co. Ltd. vs Jadavjit Keshavji Modi [1981] 4 SCC 660, referred to.
5.When distinctive claims are covered distinctly under two different statutes, choosing of one forum or the other, are not mere procedural technicalities or irregularities.
These are matters which go to the root of the jurisdiction.
The matrimonial court, a court of special jurisdiction.
is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree which implies that unless it goes onwards, Moves or leads through, to affect or disrupt the marital status between the parties.
By rejecting a claim, the matrimonial court does make an appealable decree.
in terms of section 28, but neither affects nor disrupts the marriage.
It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or to take away any legal character or status.


judgement:
Appeal No. 2854 of 1993.
From the Judgment and Order dated 6.4.1992 of the Karnataka High Court in R.S.A. No. 534 of 1990.
S.D. Bajaj, and P. Mahale for the Appellants.
Ms. Kiran Suri for the Respondent.
The Judgment of the Court was delivered by VENKATACHALA, J.
We grant Special Leave.
Since we heard learned counsel for parties on the merits of the appeal.
we are finally deciding it.
An extent of 4 acres and another extent of 6 acres 26 guntas are agricultural lands comprised in Survey No. 24/2A and Survey No. 34/2B of Kubihal Village in Kundgol Taluk of Dharwad District.
They are the disputed lands in this appeal.
The disputed lands were Watans appertaining to hereditary village offices under the Bombay Hereditary Offices Act, 1874 known as Watan Act.
Basappa Bheemappa, who was the Watandar of the disputed lands, leased them in the year 1950 in favour of appellant 1 and father of appellant 2, for their personal cultivation.
With the coming into force on 25th January, 1951 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, known s the Watan (Abolition) Act, all the Watans were resumed by the State of Bombay resulting in extinguishment of all the rights held by Watandars in such Watans.
But, there was a right conferred under the Watan Act on every Watandar the holder of the 782 Watan land, to obtain its regrant subject to payment of occupancy price.
After the resumption of the disputed lands by the State of Bombay under the Watan (Abolition) Act, Basappa Bheemappa, claiming to be their former holder applied for the irregrant before the Assistant Commissioner.
Savannah, as by then, Dharwad District where the disputed lands were located, had come to Karnataka State from Bombay State by reason of the reorganisation of States under the .
Thereafter, by his Order dated 30th November, 1968, the Deputy Commissioner of Dharwad District made the regrant of disputed lands (resumed Watan lands) in favour of their former Watandar, Basappa Bheemappa.
The tenancy of the disputed lands had since been regulated by the provisions of the Bombay Tenancy and Agricultural lands Act, 1948 (the BT & Al, Act) from the time Bassppa Bheemappa as their Watandar, had leased them in favour of appellant 1 and father of appellant 2 in the year 1950, the regrant of the disputed lands in favour of Basappa Bheemappa under the Watan (Abolition) Act, did not entitle him to obtain possession of them except under the BT & AL, Act.
Although, the Karnataka Land Reforms Act, 1961 (the KLR Act) which came into force in Karnataka on 2.10.1965, repealed by its section 141 the Watan (Abolition) Act and by its section 143 the BT & A L Act, 1948, nothing thereunder adversely affected the rights of the appellants ' tenancy in the disputed lands.
However, the said Basappa Bheemappa sold the disputed lands in favour of their tenants (the appellant 1 and father of appellant 2 on 3 1st March, 1969 under a registered sale deed.
The land Tribunal under the KLR Act, before which the appellants sought registration of their occupancy rights in the disputed lands, found it unnecessary to so register them because of its view that the disputed lands had been sold to them by the landlord regrade, Basappa Bheemappa.
But, on 8th December, 1976, the respondent filed a suit in the Court of Munsiff at Kundogol against his eldest brother, Basappa Beemappa (the seller of the disputed lands) and two other brothers arraying them as defendants 1 to 3.
That was a suit for partition of 1/4th share in the disputed lands and putting him ink separate possession of that share.
His claim for partition and separate possession of `his share in the disputed lands was based on the plea that the sale deed dated 31st March, 1969 by which defendant 1, his eldest brother, had sold the disputed lands (joint family lands) in favour of the tenants, without the prior consent of his brothers and for no legal necessity of the family, was void ab initio.
The impleaded in that suit appellants 1 and 2 as defendants 4 and 5, since they were in possession of the disputed lands.
Defendants 1, 4 and 5, resisted the plaintiff 's claim for 783 partition and separate possession of his 1/4th share in the disputed lands urging, inter alia, that he had no right to get any share in them.
After trial of the suit, the Munsiff Court ranted a decree in favour of the respondent.
That decree of the Munsiff Court was based on its findings (i) that the disputed lands were Hindu joint family properties of the plaintiff and defendants 1 to 3; (ii) that the sale of the disputed lands in favour of defendant 4 and father of defendant 5 had since been made by defendant 1 without the consent of his brothers, the plaintiff and defendants 2 and 3 and without legal necessity of the family, the same was void ab initio; (iii) that the plea of defendants 1, 4 and 5 that the tenancy revived, if the sale by defendant 1 in favour of defendant 4 and father of defendant 5 was found to be vs ' d, was unacceptable ', and (iv) that the sale by defendant ] in favour of defendant 4 and father of defendant 5 of the disputed lands was also void since sale of them (Fragments) was prohibited under the provision.
1 of the Karnataka (Prevention of Fragmentation and Consolidation of Holdings) Act, 1966 the Karnataka Prevention of Fragmentation Act.
However, defendants 4 and 5 challenged the correctness of the decree of the Munsiff Court, by filing an appeal before the Court of the Civil Judge at Hubli.
In that appeal, the Court of the Civil Judge, held that the sale deed date 3 1st March, 1969 by which defendants had sold the disputed lands, was void because of the provisions of the Karnataka Prevention of Fragmentation Act, prohibiting such sale and this situation itself enabled the plaintiff to ignore the sale effected by defendant 1 and claim his share in the disputed lands.
Accordingly, it dismissed the appeal.
A Regular Second Appeal filed by defendants 4and 5 before the High Court of Karnataka against the decree of the Civil Judge 's Court affirming the decree of the Munsiff 's Court, was dismissed in limine.
It is those decrees which are impugnned by defendants 4 and 5 in the present appeal by Special Leave.
Shri Padmanabha Mahale, the learned counsel for the appellants, contended that the Courts below ought to have held that the agricultural tenancy of the appellants in respect of the disputed lands revived when, according to them, sale of the disputed lands by defendant 1 in favour of defendants 4 and 5 (appellants 1 and 2) was ab initio void either (i) because the sale was of the joint family lands effected by the eldest brother in the family without the consent of the other brothers and for no legal necessity, or (ii) because the sale was effected when such a sale was prohibited under the provisions of the Karnataka Prevention of Fragmentation Act.
Had it been so held, it was argued, there would not have been scope for the 784 Munsiff Court to have made a decree in favour of the respondent for partition of his 1/4th share in the disputed lands and putting him in possession thereof to the extent of such share and granting him mesne profits, and that decree to have been affirmed by the Appellate Court.
On the other hand, Mrs, Kiran Surj, the learned counsel for the respondent, submitted that the tenancy or lease hold rights in the disputed lands held by the appellants got merged in the sale effected in their favour by defendant 1 on 31st March, 1969.
That sale, when was found to be void by the Courts below, such finding did not have the effect of reviving the marked tenancy of the appellants, as would restore their tenancy rights in the disputed lands.
This appeal was, therefore, liable to be dismissed.
The Court of Munsiff the Trial Court and the Court of Civil Judge the First Appellant Court, have recorded a concurrent finding that the sale by defendant 1 in favour of defendant 4 and father of defendant 5 of the disputed lands by registered sale deed dated 3 1 st March, 1969, was void ab initio that being a sale prohibited under the provisions of the Karnataka Prevention of Fragmentation Act.
Besides, the Trial Court has recorded a finding that the said sale deed was void, on its view that the 3/4th share of the plaintiff and defendants 2 and 3 in the disputed lands belonging to there joint family had been sold by their eldest brother defendant 1 without their consent and when there was no legal necessity of the family for such sale.
The Trial Court has accordingly, made the decree in the suit in favour of the plaintiff and that decree is affirmed by the Appellate Court, because of the said findings recorded by them.
The Second Appeal filed before the High Court by defendants 4 and 5, has been dismissed in limine.
That the sale deed dated3 1st March, 1969 if is void, being a prohibited sale under the provisions of the Karnataka Prevention of Fragmentation Act, as is held by the Court of Munsiff and also the Court of Civil Judge, the consequence contained in sub section (3) of section 39 of that Act should have followed, that is "Any person unauthorisedly occupying or wrongfully in possession of any land, the transfer or partition of which is void under the provisions of this Act, may be summarily evicted by the Deputy Commissioner, and after such eviction such land shall be deemed to 785 be in the possession of the person lawfully entitled to such possession".
In the instant case, the tenants on the lands (defendants 4 and 5) being the persons deemed to be in possession of the disputed lands and entitled to continue in possession thereof, the Court below ought to have seen that the partition decree sought for by the plaintiff (respondent here) could have been ranted in respect of such tenanted lands, only if the same was permissible in law, and not otherwise.
The other finding of the Courts below is, that the sale deed dated 31st March, 1969 was void because defendant 1 could not have sold the undivided interest of his brothers the plaintiff (respondent here) and defendants 2 and 3 in the disputed lands, being their joint family properties, without their consent and without the legal necessity of the family.
If that be so, defendant 1 had to be regarded as having sold in favour of defendant 4 and father of defendant 5 under sale deed dated 31st March, 1969 only his 1/4th undivided interest in the disputed lands and not.
3/4th of the undivided interest of the plaintiff and defendants 2 and 3.
That means that the lessors ' entire interest or entire reversion in the disputed lands cannot be regarded as having been sold under the sale deed of 31st March, 1969.
From this, it following that the lease hold interests of defendant 4 and father of defendant 5 in the disputed lands and lessors ' entire reversion could not have merged in one and some person.
so as to constitute merger envisaged under section 111 (d) of the , in that, for constituting merger under that provision, the interests of the lessee and the interests of the lessor in the whole of the property.
had to vest at the same time in one person in the same right.
Thus, on the basis of the finding of the Courts below, if it has to be held that defendant 1 had not sold the undivided interest of the plaintiff and defendants 2 and 3 in the disputed lands to the extent of their 3/4th share there could not have been any merger of tenancy rights of defendant 4 and father of defendant 5 in the disputed lands with that of lessors (landlords) whole rights.
If so, tenancy rights of the appellants in the disputed lands ought to be regarded as not affected or disturbed by the sale deed of 31st March, 1969.
Hence, consideration of the question whether there arose revival of the right of tenancy of the appellants in the disputed lands, is unnecessary In the result, we allow this appeal, set aside the judgments and decrees of the Courts below and remit the case to the Court of Munsiff at Kundgol, Dharwad 786 District of Karnataka State with a direction to it to take back the suit on to its file and decide after affording the parties an opportunity of hearing, the question whether the plaintiff would be entitled to the decree sought for in the suit, if the disputed lands had continued as tenanted lands, as found by us.
No costs.
U.R. Appeal allowed.

summary/full:
Basappa Bheemappa K,as the Watandar of the disputed agricultural lands admeasuring 4 acres, and 6 acres 26 guntts, in Kubihal Village in Kundgol Taluk of Dhwarwad District which became a part of Karnataka State in 1956.
In 1950, he leased the disputed lands to appellant 1 and the father of appellant 2 for their personal cultivation.
With the coming into force of the Bombay paragana and Kulkarni Watans(Abolition) Act 1950 the lands were resumed by the State of Bombay, Bheemappa applied under this Act for regrant of the wattan land, and the Dy.
Commissioner of Dhawad District made the regrant in his favour on 30.11.1968.
On 31.3.1969, he sold the land to appellant No. 1 and the father of appellant No. 2 under a registered sale deed.
The land tribunal under the Karnataka land Reforms Act 1961 found it unnecessary to register the occupancy rights (of the appellants in view of the sale.
In 1976, respondent field a suit against Bheemappa and 2 other brothers for partition to the disputed property and separate possession.
He impleadcd appellants 1 and 2 as defendant,; in the suit since they were in possession of the disputed lands.
He contended that Bheemappa had sold the lands without the prior consent of his brothers, and for nor legal necessity.
of the family, and the sale was void ab initio.
780 The Munsiff Court granted a decree in favour of the respondent on its finding that the disputed funds were Hindu joint family properties, that the sale *%,as void ab initio for tile reasons stated . and that the plea (if the defendants appellants that if the sale was void the tenancy revived. ",as unacceptable.
The Munsiff Court, and in appeal, the Civil Judge concurrently held that the sale was void since sale (it ' fragments was prohibited under the Karnataka prevention of Fragmentation Act 1966.
A regular second appeal before the High Court was dismissed in limine.
The appellants contended before this Court that if the sale was ab initio void, the agricultural tenancy (of the appellant%; revived.
For the respondents it was submitted that the tenancy on lease hold rights in the disputed lands held by the appellant got merged in tile sale effected in their favour.
When that sale was found to be void it did not have the effect (if reviving the merged tenancy of the appellants,as would restore their tenancy right,; in the disputed lands.
Allowing the appeal, this Court, HELD: (1) Tile tenants being the persons deemed to be in possession of the disputed lands and entitled to continue in possession thereof a partition decree could have been granted, in respect of such tenanted lands only if permissible by law.
(784 H) (2) The courts below having found that the sale deed was void because Bheemappa could not having sold the undivided interest of his brother, only his 1/4 undivided interest, in the disputed lands had to be regarded as having been sold by him.
(784 H) The lessors ' entire interest (or entire reversion in the disputed lands cannot therefore be regarded us having been sold under the sale deed of 31 st March, 1969.
From this, it follows that the lease hold interests of the leases and the lessors entire reversion could not have merged in one and the same person, so as to constitute merger envisaged under section 111(d) of the Transfer of Property.
Act, 1982.
For constituting merger under that procession, the interests of the lessee and the interests of the lessor in the whole of the 781 property had to vest at the same time in one person in the same right.
(785 BC) The tenancy rights of the appellants in the disputed lands was not affected or disturbed by the sale deed of 31st March, 1969, and it is unnecessary to consider the question of revival of the right of tenancy of the appellants in the disputed lands.
(785 D) 3.
Case remitted to the Court of Munsiff at Kundgol Dharwad District to decide the claim for partition if the disputed lands had continued as tenanted lands, as found by this Court.
(785 E)


judgement:
Appeal No. 2847 of 1993.
From the Judgment and Order dated 31.8.1990 of the Delhi High Court in C.W. 2617 of 1989.
Yogeshwar Prasad, U.S Prasad, A.K. Lal Sinha, V.S. Pandey, Mrs. Nidhi Pandey and S.M. Tripathi for the Appellant.
V.C. Mahajan, and S.N. Terdol for the Respondents.
The Judgment of the Court was delivered by K.RAMASWAMY, J.
Special leave granted.
In response to the advertisement No. 33 dated August 19, 1989 the appellant had applied for recruitment to the post of Examiner of Personnel in the Department of Civil Aviation.
He was unsuccessful in the selection.
He later on challenged paras 3(i) and 3(ii) of the advertisement on the ground that the qualifications prescribed are discriminatory and were tailor made.
He also contends that in 1969, for the said post the qualifications prescribed were 1st Class British or Indian Navigator or a British Flight Navigator licence with not less than 100 hours of air experience.
The method of recruitment was direct recruitment and the age prescribed was 45 years relaxable to Government Servants.
He claims that he is having the first Class licence with 100 hours of air navigation experience.
With a view to deprive him of the change, the offending rules have been amended in 1978 substituting 300 hours of instructional flying and experience of not less than 2500 hours as Flight Navigator with category A and endorsement to fly VIPs and VVIPs on all routes in I.A.F. air crafts or should hold or have held or Indian Flight Navigator Licence.
According to him this rule was made with a view to deprive him of his chance.
The Delhi High Court dismissed the writ petition summarily.
To appreciate the contention, it is necessary to read to rules.
As per the 1969 rules 774 which are statutory made under proviso to article 309 of the Constitution, the method of recruitment with qualification prescribed thereafter are thus: "Essential (i) First Class British or Indian Navigators ' Licence with not less than 100 hours air experience.
Desirable (i) Degree in Mathematics or in Engineering.
(ii) Experience of Goedetic Surveying.
In 1978 clause A was amended and in its place Clauses A(i) and (ii) were brought on the rules which reads thus : "A(i) Experience of an minimum of 300 hours of instructional flying as qualified Navigation Instructor.
(ii) Experience of not less than 2500 hours as Flight Navioator with category "A" and endorsement to fly VIPs VVIPs on all routes in I.A.F. aircraft.
OR "B" (i) Should hold or have held an Indian Flight Navigators ' licence.
(ii) Experience of 2000 hours as Flight Navigator on international Routes.
Desirable (i) Degree in Science with Physics and Mathematics as subject of recognised University or equivalent.
(ii) Experience as Navigation Instructor in a recognised Institution or in an Air Corporation.
(iii) Commercial Pilot 's licence.
Method of recruitment is direct recruitment through the Union Public Service 775 Commission.
When the candidates in required number did not apply for, the rules have been further amended in 1989 with the following modified qualifications Essential 1. 10+2 with Physics, Chemistry & Mathematics 2(i) should have held a senior Commercial Pilot 's Licence.
(ii) should have flying experience of not less than 2500 hours on multiengine aircraft of which not less than 250 hours should be as pilot in command.
OR (i) should hold or should have held an Indian Flight Navigator 's licence.
(ii) should have not less than 500 hours experience as Flight Navigator.
Desirable 1.
Degree in Science with Physics and Mathematics of a recognised University or its equivalent.
2. Experience as Navigation Instructor in a recognised institute/Flying Club or in an Airline.
Method of recruitment by direct recruitment failing which by transfer or deputation including short term contract).
Age: 50 years.
It is not in dispute that these rules have been made by the President exercising the power under proviso to article 309 of the Constitution which read thus : "309.
Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: 776 Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such service and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.
" It would thus clear that the rules made by the President or authorised person under proviso to article 309 are subject to any law made by the Parliament and the power includes rules regulating the recruitment and the conditions of service or post.
They are statutory and legislative in character.
The statutory rules thus made are subject to the law that may be made by the Parliament.
In B.S Vadera vs Union of India & Ors.
reported in ; , this Court held that the rules made under the proviso to article 309 of the Constitution shall have effect subject to the provisions of the Act i.e. if the appropriate legislature has passed an Act, In its absence the rules made by the president or by such person as he may direct are to have full effect.
In The General Manager, Southern Railway vs Rangachari reported in ; at 596 another Constitution Bench held that equality of opportunity need not be confused with absolute equality as such.
What is guaranteed is the equality of opportunity and nothing more.
Article 16(1) or 16(2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office or post.
Any provision as to the qualifications for the employment or appointment to an office or post reasonably fixed and applicable to all citizens would certainly he consistent with the doctrine of the equality of opportunity.
In State of Mysore, & Anr.
vs P. Narasing Rao report in ; at 411 this Court held that the provisions of article 14 or article 16 do not exclude the laying down of selective tests, nor do they preclude the Government from laying down qualifications for the post in question.
Such qualifications need not be only technical but they can also be general qualifications relating to the suitability of the candidate for such service as such.
The same was the view in another Constitution Bench decision reported in The State of Jamu and Kashmir vs Triloki Nath Khosa & Ors. ; In State of Orissa & Ant .
vs N.N. Swamy & Ors.
reported in [1977] 1 2 SCC 508 in paragraph 18, this Court held that 777 the eligibility must not be confused with the suitability of the candidate for appointment.
Thus it would be clear that, in the exercise of the rule making power, the president or authorised person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State.
The rules thus having been made in exercise of ' the power under proviso to article 309 of the Constitution, being Statutory, cannot he impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal.
Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law.
The rules prescribed qualifications for eligibility and the suitability of the appellant would be tested by the Union Public Service Commission.
It is next contended that several persons whose names have been copiously mentioned in the appeal were not qualified to hold the post of examiner and they were not capable even to set the test papers to the examiners nor capable to evaluate the papers.
We are not called upon to decide the legality of their appointments nor their credentials in this appeal as that question does not arise nor are they before the court.
It is next contended by Mr. Yogeshwar prasad, the learned Senior counsel that on account of inefficiency in the pilots ' operational Capability repeatedly air accidents have been occurring endangering the lives of innocent travellers and this Court should regulate the prescription of higher qualifications and strict standard to the navigators or to the pilots be instead on.
We are afraid that we cannot enter into nor undertake the responsibility in that behalf '.
It is for the expert body and this Court does not have the assistance of experts.
Moreover it is for the rule making authority or for the legislature to regulate the method of recruitment, prescribe qualifications etc.
It is open to the President or the authorized person to undertake such exercise and that necessary tests should be conducted by U.P.S.C. before giving, the certificates to them.
This is not the province of this Court to trench into and prescribe qualifications in particular when the matters are of the technical nature.
It is stated in the counter affidavit that due to advancement of technology of the flight aviations the navigators are no longer required and therefore they are not coming in large number.
Despite the repeated advertisements no suitable candidate is coming forward, We do not go into fault aspect also and it is not necessary for the purpose of this case.
Suffice to state that pursuant to another advertisement made in July 1992, the appellant is stated to have admittedly applied for and appeared before the 778 U.P.S.C. for selection and that he is awaiting the result thereof.
Under these circumstances.
we do not find any substance in this appeal.
The appeal is accordingly dismissed.
No costs.
U. R. Appeal dismissed.

summary/full:
The appellant had applied for recruitment as Examiner of Personnel in the Department of Civil Aviation, but was unsuccessful.
He challenged the qualifications detailed in the advertisement as being discriminatory and tailor made, with a view to exclude him.
He contended that while he would have qualified under the 1969 Rules framed under the proviso to Article 309, the rules were amended in 1978 and 1989 with a view to deprive him of his chance.
He submitted that the court should regulate the prescription of higher qualifications and strict standards for navigators and pilots in view of the frequent air accidents.
Dismissing the appeal, this Court, HELD: (1) In exercise of rule making power under Proviso to article 309, the President or authorised person is entitled to prescribe the method (of recruitment, educational and technical qualifications or conditions of service for appointment to an office or post under the State.
These rules being statutory cannot be impeached as being tailor made to suit specific individuals.
(777 B) B.s.
Vadera vs Union of India & Ors., ; ; General manager, Southern Railway vs Rangachari ; at 596; State of Mysore vs P.Narasing Rao [19681 1 SCR 407 at 411; State of J & K vs Triloki Nath Khosa AIR 1974SCI and Sate of Orissa vs
N.N.Swamy ; , para 18, followed.
(2) No motives can he attributed to the Legislature in making the law.
(777 C) 773 (3) The prescribed qualifications and the suitability of the applicant would be tested by the UPSC.
(777 C) (4) It is for the rule making authority or for the Legislature to regulate the method of recruitment, prescribe qualifications etc.
It is not for this court to trench into and prescribe qualifications, in particular where the matters are of a technical nature (777 F)