Appeal No 2847 of 1993
From the Judgment and Order dated 3181990 of the Delhi High Court in CW 2617 of 1989
Yogeshwar Prasad US Prasad AK Lal Sinha VS Pandey Mrs Nidhi Pandey and SM Tripathi for the Appellant
VC Mahajan and SN Terdol for the Respondents
The Judgment of the Court was delivered by KRAMASWAMY 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 3i and 3ii 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 IAF 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 Ai and ii were brought on the rules which reads thus  Ai 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 IAF 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 1 102 with Physics Chemistry  Mathematics 2i 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 instituteFlying 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 BS 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 ie 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 161 or 162 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 NN 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 UPSC 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 UPSC 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:
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 1000 pm
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 6000as litigation expenses and Rs 2000as 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 HELDThe 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
2A 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
3While sustaining her marriage and preserving her marital status a Hindu wife s claim to maintenance is codified is S18 of the Hindu Adoptions 956 and Maintenance Act 1956 and must necessarily be agitated thereunder
4The 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
5When 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